Exhibit 4.1
MAAX HOLDINGS, INC.,
as Issuer,
and
U.S. Bank Trust National Association,
as Trustee
INDENTURE
Dated as of December 10, 2004
11.25% Senior Discount Notes due 2012
CROSS-REFERENCE TABLE
Trust Indenture Act Indenture
Section Section
------------------ -----------
310 (a)(1)................................................................ 7.10
(a)(2)................................................................ 7.10
(a)(3)................................................................ N.A.
(a)(4)................................................................ N.A.
(a)(5)................................................................ 7.08; 7.10
(b)................................................................... 7.08; 7.10; 10.02
(c)................................................................... N.A.
311 (a)................................................................... 7.11
(b)................................................................... 7.11
(c)................................................................... N.A.
312 (a)................................................................... 2.05
(b)................................................................... 10.03
(c)................................................................... 10.03
313 (a)................................................................... 7.06
(b)(1)................................................................ 7.06
(b)(2)................................................................ 7.06
(c)................................................................... 7.06; 10.02
(d)................................................................... 7.06
314 (a)................................................................... 4.06; 4.18; 10.02
(b)................................................................... N.A.
(c)(1)................................................................ 7.02; 10.04; 10.05
(c)(2)................................................................ 7.02; 10.04; 10.05
(c)(3)................................................................ N.A.
(d)................................................................... N.A.
(e)................................................................... 10.05
(f)................................................................... N.A.
315 (a)................................................................... 7.01(b); 7.02(a)
(b)................................................................... 7.05; 10.02
(c)................................................................... 7.01
(d)................................................................... 6.05; 7.01(c)
(e)................................................................... 6.11
316 (a)(last sentence).................................................... 2.09
(a)(1)(A)............................................................. 6.05
(a)(1)(B)............................................................. 6.04
(a)(2)................................................................ 9.02
(b)................................................................... 6.07
(c)................................................................... 9.05
317 (a)(1)................................................................ 6.08
(a)(2)................................................................ 6.09
(b)................................................................... 2.04
318 (a)................................................................... 10.01
(c)................................................................... 10.01
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. Other Definitions....................................................................... 26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act....................................... 27
SECTION 1.04. Rules of Construction................................................................... 27
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating......................................................................... 28
SECTION 2.02. Execution, Authentication and Denomination; Additional Notes; Exchange Securities....... 29
SECTION 2.03. Registrar and Paying Agent.............................................................. 30
SECTION 2.04. Paying Agent To Hold Assets in Trust.................................................... 31
SECTION 2.05. Holder Lists............................................................................ 31
SECTION 2.06. Transfer and Exchange................................................................... 31
SECTION 2.07. Replacement Notes....................................................................... 32
SECTION 2.08. Outstanding Notes....................................................................... 32
SECTION 2.09. Treasury Notes.......................................................................... 33
SECTION 2.10. Temporary Notes......................................................................... 33
SECTION 2.11. Cancellation............................................................................ 33
SECTION 2.12. Defaulted Interest...................................................................... 33
SECTION 2.13. CUSIP and ISIN Numbers.................................................................. 34
SECTION 2.14. Deposit of Moneys....................................................................... 34
SECTION 2.15. Book-Entry Provisions for Global Notes.................................................. 34
SECTION 2.16. Special Transfer and Exchange Provisions................................................ 35
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee...................................................................... 39
SECTION 3.02. Selection of Notes To Be Redeemed....................................................... 39
SECTION 3.03. Notice of Redemption.................................................................... 40
SECTION 3.04. Effect of Notice of Redemption.......................................................... 41
SECTION 3.05. Deposit of Redemption Price............................................................. 41
SECTION 3.06. Notes Redeemed in Part.................................................................. 41
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes........................................................................ 42
SECTION 4.02. Maintenance of Office or Agency......................................................... 42
SECTION 4.03. Corporate Existence..................................................................... 42
SECTION 4.04. Payment of Taxes........................................................................ 43
SECTION 4.05. Reserved................................................................................ 43
SECTION 4.06. Compliance Certificate; Notice of Default............................................... 43
SECTION 4.07. Payments for Consent.................................................................... 43
SECTION 4.08. Waiver of Stay, Extension or Usury Laws................................................. 44
SECTION 4.09. Change of Control....................................................................... 44
SECTION 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock.............................. 46
SECTION 4.11. Limitations on Restricted Payments...................................................... 49
SECTION 4.12. Limitations on Liens.................................................................... 53
SECTION 4.13. Limitations on Asset Sales.............................................................. 54
SECTION 4.14. Limitations on Transactions with Affiliates............................................. 57
SECTION 4.15. Dividend and Other Payment Restrictions Affecting Subsidiaries.......................... 59
SECTION 4.16. Limitations on Layering Indebtedness.................................................... 61
SECTION 4.17. Reports to Holders...................................................................... 61
SECTION 4.18. Limitations on Designation of Restricted and Unrestricted Subsidiaries.................. 62
SECTION 4.19. Business Activities..................................................................... 62
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations, Etc............................................................ 62
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default....................................................................... 63
SECTION 6.02. Acceleration............................................................................ 65
SECTION 6.03. Other Remedies.......................................................................... 66
SECTION 6.04. Waiver of Past Defaults................................................................. 66
SECTION 6.05. Control by Majority..................................................................... 67
SECTION 6.06. Limitation on Suits..................................................................... 67
SECTION 6.07. Rights of Holders To Receive Payment.................................................... 67
SECTION 6.08. Collection Suit by Trustee.............................................................. 68
SECTION 6.09. Trustee May File Proofs of Claim........................................................ 68
SECTION 6.10. Priorities.............................................................................. 68
SECTION 6.11. Undertaking for Costs................................................................... 69
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee....................................................................... 69
SECTION 7.02. Rights of Trustee....................................................................... 70
SECTION 7.03. Individual Rights of Trustee............................................................ 72
SECTION 7.04. Trustee's Disclaimer.................................................................... 72
SECTION 7.05. Notice of Default....................................................................... 72
SECTION 7.06. Reports by Trustee to Holders........................................................... 72
SECTION 7.07. Compensation and Indemnity.............................................................. 73
SECTION 7.08. Replacement of Trustee.................................................................. 74
SECTION 7.09. Successor Trustee by Merger, Etc........................................................ 75
SECTION 7.10. Eligibility; Disqualification........................................................... 75
SECTION 7.11. Preferential Collection of Claims Against the Issuer.................................... 75
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Issuer's Obligations................................................. 75
SECTION 8.02. Option to Effect Legal Defeasance or Covenant Defeasance................................ 76
SECTION 8.03. Legal Defeasance........................................................................ 76
SECTION 8.04. Covenant Defeasance..................................................................... 77
SECTION 8.05. Conditions to Legal or Covenant Defeasance.............................................. 78
SECTION 8.06. Deposited Money and Government Securities
to Be Held in Trust; Other Miscellaneous Provisions................................. 79
SECTION 8.07. Repayment to Issuer..................................................................... 79
SECTION 8.08. Reinstatement........................................................................... 80
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.............................................................. 80
SECTION 9.02. With Consent of Holders................................................................. 81
SECTION 9.03. Compliance with the Trust Indenture Act................................................. 82
SECTION 9.04. Revocation and Effect of Consents....................................................... 82
SECTION 9.05. Notation on or Exchange of Notes........................................................ 83
SECTION 9.06. Trustee To Sign Amendments, Etc......................................................... 83
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls............................................................ 84
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SECTION 10.02. Notices................................................................................. 84
SECTION 10.03. Communications by Holders with Other Holders............................................ 85
SECTION 10.04. Certificate and Opinion as to Conditions Precedent...................................... 85
SECTION 10.05. Statements Required in Certificate or Opinion........................................... 85
SECTION 10.06. Rules by Paying Agent or Registrar...................................................... 86
SECTION 10.07. Legal Holidays.......................................................................... 86
SECTION 10.08. Governing Law........................................................................... 86
SECTION 10.09. No Adverse Interpretation of Other Agreements........................................... 86
SECTION 10.10. No Recourse Against Others.............................................................. 86
SECTION 10.11. Successors.............................................................................. 86
SECTION 10.12. Duplicate Originals..................................................................... 87
SECTION 10.13. Severability............................................................................ 87
Signatures................................................................................................. S-1
Exhibit A - Form of Note
Exhibit B - Form of Legends
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit E - Form of Certificate To Be Delivered in Connection with
Transfers of Temporary Regulation S Global Note
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
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INDENTURE dated as of December 10, 2004 between MAAX Holdings, Inc.,
a Delaware corporation (the "ISSUER"), and U.S. Bank Trust National Association,
a national banking association, as Trustee (the "TRUSTEE").
The Issuer has duly authorized the creation of an issue of 11.25%
Senior Discount Notes due 2012 and, to provide therefor, the Issuer has duly
authorized the execution and delivery of this Indenture. All things necessary to
make the Notes, when duly issued and executed by the Issuer and authenticated
and delivered hereunder, the valid and binding obligations of the Issuer and to
make this Indenture a valid and binding agreement of the Issuer has been done.
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, the parties hereto covenant and agree, for the
equal and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
Set forth below are certain defined terms used in this Indenture.
"144A GLOBAL NOTE" has the meaning given to such term in Section
2.01.
"ACCRETED VALUE" means, as of any date (the "SPECIFIED DATE"), the
amount provided below for each $1,000 principal amount at maturity of Notes:
(1) if the Specified Date occurs on one of the following dates
(each, a "SEMI-ANNUAL ACCRUAL DATE"), the Accreted Value will equal the
amount set forth below for such Semi-Annual Accrual Date:
Semi-Annual Accrual Date Accreted Value
------------------------ --------------
June 15, 2005 $ 681.76
December 15, 2005 $ 720.11
June 15, 2006 $ 760.62
December 15, 2006 $ 803.40
June 15, 2007 $ 848.59
December 15, 2007 $ 896.33
June 15, 2008 $ 946.75
December 15, 2008 $ 1,000.00
The foregoing Accreted Values shall be increased, if necessary, to reflect any
addition of Special Interest, if any, under the Registration Rights Agreement or
decreased to reflect any redemptions or repurchases pursuant to this Indenture.
(2) if the Specified Date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (A) the original
issue price of a Note (which, for purposes of this definition, is deemed
to be $644.45 per $1,000 principal amount at maturity of the Notes) and
(B) an amount equal to the product of (x) the Accreted Value for the first
Semi-Annual Accrual Date less such original Issue Price multiplied by (y)
a fraction, the numerator of which is the number of days from the Issue
Date to the Specified Date, using a 360-day year of twelve 30-day months,
and the denominator of which is the number of days elapsed from the Issue
Date to the first Semi-Annual Accrual Date, using a 360-day year of twelve
30-day months;
(3) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (A) the Accreted Value for
the Semi-Annual Accrual Date immediately preceding such Specified Date and
(B) an amount equal to the product of (x) the Accreted Value for the
immediately following Semi-Annual Accrual Date less the Accreted Value for
the Semi-Annual Accrual Date immediately preceding such Specified Date
multiplied by (y) a fraction, the numerator of which is the number of days
from the immediately preceding Semi-Annual Accrual Date to the Specified
Date, using a 360-day year of twelve 30-day months, and the denominator of
which is 180; or
(4) if the Specified Date occurs on or after the Full Accretion
Date, the Accreted Value will equal $1,000 (increased, if necessary, to
reflect any addition of Special Interest, if any, under the Registration
Rights Agreement or decreased to reflect any redemptions or repurchases
pursuant to this Indenture).
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Restricted Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with or
into, or becoming a Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have correlative
meanings.
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"AGENT" means any Registrar or Paying Agent.
"AHYDO AMOUNT" means, with respect to each Note, the portion of such
Note sufficient, but not in excess of the portion necessary, to ensure that such
Note will not be an "applicable high yield discount obligation" within the
meaning of Section 163(i)(1) of the Internal Revenue Code of 1986.
"APPLICABLE PREMIUM" means, with respect to a Note at any Redemption
Date, the greater of:
(1) 1.0% of the Accreted Value of such Note; and
(2) the excess of:
(a) the present value at such Redemption Date of the
Redemption Price of such Note on the Fourth Anniversary (such
Redemption Price being that described in Section 5(a) of the Notes)
computed using a discount rate equal to the Treasury Rate plus 50
basis points, discounted on a semi-annual bond equivalent basis,
over
(b) the Accreted Value of such Note on such Redemption Date.
Calculation of the Applicable Premium shall be made by the Issuer or on behalf
of the Issuer by such Person as the Issuer shall designate; provided, however,
that such calculation shall not be a duty or obligation of the Trustee.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any assets
other than in the ordinary course of business; provided that the sale,
conveyance or other disposition of all or substantially all of the assets
of the Issuer and the Restricted Subsidiaries taken as a whole shall be
governed by the provisions of Sections 4.09 and/or 5.01 and not by the
provisions of Section 4.13; and
(2) the issuance of Equity Interests in any of the Restricted
Subsidiaries or the sale of Equity Interests in any of the Restricted
Subsidiaries.
Notwithstanding the preceding, none of the following items shall be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions that
involves assets having a Fair Market Value of less than $2.5 million;
(2) a transfer of assets between or among the Issuer and/or the
Restricted Subsidiaries;
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(3) an issuance of Equity Interests by a Restricted Subsidiary to
the Issuer or to another Restricted Subsidiary or the issuance of Equity
Interests by a Restricted Subsidiary in which the Issuer's percentage
interest (direct and indirect) in the Equity Interests of such Restricted
Subsidiary, after giving effect to such issuance, is at least equal to its
percentage interest prior thereto;
(4) the sale, lease, conveyance or other disposition of assets in
the ordinary course of business and any sale or other disposition of
damaged, worn-out or obsolete assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) a Restricted Payment that does not violate Section 4.11 or a
Permitted Investment;
(7) sales of accounts receivable pursuant to Permitted Factoring
Arrangements;
(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 Issuer and the Restricted Subsidiaries; and
(9) the sale of Permitted Investments (other than sales of Equity
Interests of any of the Restricted Subsidiaries) made by the Issuer or any
Restricted Subsidiary after the date of this Indenture, if such Permitted
Investments were (a) received in exchange for, or purchased out of the net
cash proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Issuer) of, Equity Interests of the Issuer (other than
Disqualified Stock) or (b) received in the form of, or were purchased from
the proceeds of, a substantially concurrent contribution of common equity
capital to the Issuer.
"BANKRUPTCY LAW" means Title 11 of the United States Code, as
amended, or any applicable United States federal or state law for the relief of
debtors or Canadian federal or provincial bankruptcy, insolvency, reorganization
or other similar law, including without limitation the Bankruptcy and Insolvency
Act (Canada) and the Companies' Creditors Arrangement Act (Canada).
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only after the passage of time. The terms
"Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"BOARD OF DIRECTORS" means:
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(1) with respect to a corporation, the board of directors of the
corporation or, other than for purposes of the definition of "Change of
Control" and "Continuing Directors," any committee thereof duly authorized
to act on behalf of such board; and
(2) with respect to any other Person, the functional equivalent of a
board of directors of a corporation or, other than for purposes of the
definition of "Change of Control" and "Continuing Directors," any
committee thereof duly authorized to act on behalf thereof.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other
day on which banking institutions in New York or Montreal, Quebec are authorized
or required by law to close.
"CANADIAN DOLLAR EQUIVALENT" means, as to any amount denominated in
U.S. dollars as of any date of determination, the amount of Canadian Dollars
which would be required to purchase such amount of U.S. dollars at the Bank of
Canada noon (Toronto time) spot rate on such date or, if such date of
determination is not a Business Day, on the Business Day immediately preceding
such date of determination.
"CANADIAN HOLDING COMPANY" means MAAX Canada Inc., a corporation
governed by the Canada Business Corporations Act, and its predecessors.
"CAPITAL LEASE OBLIGATION" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation or unlimited company, corporate
stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any
debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
"CASH EQUIVALENTS" means, as at any date of determination, (1)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States or Canada and maturing within one
year of the date of acquisition thereof or (b) issued by any agency of the
United States or Canada the obligations of which are backed by the full faith
and credit of the United States or Canada, in each case maturing within one year
after
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the date of acquisition thereof; (2) marketable direct obligations issued by any
state of the United States of America or province of Canada or any political
subdivision of any such state or province or any public instrumentality thereof,
in each case maturing within one year after the date of acquisition thereof and
having a rating of at least A-2 from Standard & Poor's Rating Services or at
least P-2 from ▇▇▇▇▇'▇ Investors Service, Inc.; (3) commercial paper maturing no
more than one year from the date of acquisition thereof and having a rating of
at least A-2 from S&P, at least P-2 from Moody's or at least R-2 (high) from
Dominion Bond Rating Services Limited; (4) certificates of deposit, time
deposits or bankers' acceptances maturing within one year after the date of
acquisition thereof and issued or accepted by any lender under any Credit
Facility or by any commercial bank organized under the laws of the United States
of America or any state thereof or the District of Columbia that is at least
"adequately capitalized" (as defined in the regulations of its primary Federal
banking regulator) and has Tier 1 capital (as defined in such regulations) of
not less than $100.0 million; (5) financial instruments maturing within one year
after the date of acquisition thereof and issued by any Canadian chartered bank
which has a long-term debt rating of at least A+ by S&P, A2 by Moody's or A
(high) by Dominion Bond Rating Services Limited; (6) repurchase agreements with
a term of not more than 30 days for underlying securities of the types described
in clause (1) or (2) entered into with any bank meeting the qualifications
specified in clause (4) or (5), which repurchase obligations are secured by a
perfected first priority security interest in the underlying securities; (7)
shares of any money market mutual fund that (a) has substantially all of its
assets invested continuously in the types of investments referred to in clauses
(1) and (5) above, (b) has net assets of not less than $500.0 million and (c)
has the highest rating obtainable from either S&P or Moody's; and (8) in the
case of any European Subsidiary, investments made locally of a type comparable
to those described in clauses (1) through (7) of this definition.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger, amalgamation or consolidation),
in one or a series of related transactions, of all or substantially all of
the properties or assets of the Issuer and its Subsidiaries taken as a
whole to any "person" (as that term is used in Section 13(d) of the
Exchange Act) other than an Equity Sponsor or a Control Investment
Affiliate of an Equity Sponsor;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Issuer (other than a transaction that complies with the
provisions of Section 5.01);
(3) the consummation of any transaction (including, without
limitation, any merger, amalgamation or consolidation), the result of
which is that any "person" (as defined in clause (1) above) other than an
Equity Sponsor or a Control Investment Affiliate of an Equity Sponsor
becomes the Beneficial Owner, directly or indirectly, of Voting Stock of
the Issuer representing 50% or more of the total voting power of the
Voting Stock of the Issuer; provided that this clause (3) shall not be
deemed to be triggered by any Person that is deemed to be a Beneficial
Owner of Voting Stock of the Issuer by virtue
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of its relationship with (other than ownership directly or indirectly of
Capital Stock of) an Equity Sponsor or a Control Investment Affiliate of
an Equity Sponsor;
(4) after an initial public offering of the Issuer, the first day on
which a majority of the members of the Board of Directors of the Issuer
are not Continuing Directors; provided, however, that the Equity Sponsor
and their Control Investment Affiliates do not, at such time, in the
aggregate, (a) Beneficially Own, directly or indirectly, Voting Stock of
the Issuer representing more than 50% of the total voting power of the
Voting Stock of the Issuer or (b) have the right or ability by voting
power, contract or otherwise to elect or designate a majority of the Board
of Directors of the Issuer; or
(5) the Issuer shall cease to Beneficially Own all of the Equity
Interests of Holdings.
"CONSOLIDATED CASH FLOW" means, for any period, for any Person, an
amount determined for such Person and its Restricted Subsidiaries on a
consolidated basis equal to
(i) Consolidated Net Income of such Person for such period; plus
(ii) the sum, without duplication, of the amounts for such Person
and its Restricted Subsidiaries for such period (in each case to the
extent reducing such Consolidated Net Income) of
(a) Fixed Charges;
(b) provision for taxes based on income;
(c) total depreciation expenses;
(d) total amortization expenses;
(e) other non-cash items reducing such Consolidated Net Income
(excluding any such non-cash item to the extent that it represents
an accrual or reserve for potential cash items in any future period
or amortization of a prepaid cash item that was paid in a prior
period);
(f) relocation costs and expenses incurred to move the
headquarters of Holdings and its Subsidiaries from Sainte-▇▇▇▇▇,
Canada to Montreal, Canada;
(g) costs and expenses incurred on or prior to the Issue Date
during the fiscal year ending February 28, 2005 in connection with
the transactions described under "Use of Proceeds" (a) in the
Offering Memorandum or (b) in the offering circular related to the
issuance of MAAX Corporation Notes;
(h) Restructuring Expenses in an aggregate amount not to
exceed $5.0 million in any four-quarter period;
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(i) other non-recurring, non-operating losses in an aggregate
amount not to exceed $5.0 million in any four-quarter period;
(j) cash gains realized under Hedging Obligations relating to
currency exchange rates; and
(k) minority interest (if negative) with respect to any
Restricted Subsidiary; minus
(iii) the sum, without duplication, of the amounts for such period
(in each case to the extent increasing such Consolidated Net Income) of
(a) non-cash items increasing such Consolidated Net Income
(excluding any such non-cash item to the extent it represents the
reversal of an accrual or reserve for potential cash item in any
prior period);
(b) non-recurring, non-operating gains;
(c) cash losses realized under Hedging Obligations relating to
currency exchange rates; and
(d) minority interest (if positive) with respect to any
Restricted Subsidiary; plus or minus
(iv) without duplication of any amounts referred to above or in the
definition of Consolidated Net Income, with respect to any part of a
four-quarter period that is part of the fiscal year ended February 29,
2004, the pro forma adjustments to net income set forth in the section
"Unaudited Pro Forma Financial Data" in the Offering Memorandum and the
adjustments to net income to derive "EBITDA" and to "EBITDA" to derive
"Adjusted EBITDA" set forth in the section "Summary -- Summary Historical
and Pro Forma Consolidated Financial Data" in the Offering Memorandum;
provided that the items listed in clauses (ii)(a) through (e) of a Restricted
Subsidiary shall be included in Consolidated Cash Flow only to the extent (and
in the same proportion) that the net income of such Subsidiary was included in
calculating Consolidated Net Income for such period.
"CONSOLIDATED NET INCOME" means, for any period, for any Person, the
net income (or net loss) of such Person and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted
to the extent included in calculating such net income or loss by excluding:
(1) any net after-tax extraordinary gains or losses (less all fees
and expenses relating thereto);
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(2) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales, dispositions of securities
or returned surplus assets of any pension plan;
(3) the net income (but not the net loss) of any Person that is not
a Restricted Subsidiary of the specified Person or that is accounted for
by the equity method of accounting, except to the extent of the amount of
dividends or other distributions actually paid to such Person or any of
its Restricted Subsidiaries in cash during such period;
(4) the net income (but not the net loss) of any Restricted
Subsidiary of the specified Person to the extent that the declaration or
payment of dividends or similar distributions by such Restricted
Subsidiary is at the date of determination prohibited, directly or
indirectly, except to the extent (i) that such net income is actually paid
to such Person or any of its Restricted Subsidiaries by loans, advances,
intercompany transfers, principal repayments or otherwise or (ii) such
prohibition is permitted by Section 4.15; and
(5) the cumulative effect of a change in accounting principles;
provided, further, that Consolidated Net Income shall be reduced by (A) the
product of (x) the amount of all dividends on Designated Preferred Stock (other
than dividends paid in Qualified Equity Interests) paid, accrued or scheduled to
be paid or accrued during such period times (y) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state, provincial and local statutory tax rate of the Issuer and its
Subsidiaries, expressed as a decimal, and (B) payments made to any Parent
Company pursuant to clause (8) of Section 4.14(b).
"CONSOLIDATED NET TANGIBLE ASSETS" means the aggregate amount of
assets of the Issuer (less applicable reserves and other properly deductible
items) after deducting therefrom (to the extent otherwise included therein) (a)
all current liabilities (other than the obligations under this Indenture, the
MAAX Corporation Notes or current maturities of long-term Indebtedness), and (b)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the books and records of
the Issuer and the Restricted Subsidiaries on a consolidated basis and in
accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Issuer who:
(1) was a member of such Board of Directors on the Issue Date;
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination or
election; or
(3) was nominated by one or more of the Equity Sponsors or their
Control Investment Affiliates.
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"CONTROL INVESTMENT AFFILIATE" means, as to any Person, any other
Person which directly or indirectly is in control of, is controlled by, or is
under common control with such Person and is organized by such Person (or any
Person controlling such Person) primarily for making equity or debt investments
in portfolio companies.
"CORPORATE TRUST OFFICE" means the corporate trust office of the
Trustee located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services, or such other office, designated by the Trustee by
written notice to the Issuer, at which at any particular time its corporate
trust business shall be administered.
"CREDIT AGREEMENT" means that certain credit agreement, dated June
4, 2004, by and among Holdings, MAAX Corporation, certain subsidiaries of MAAX
Corporation, ▇▇▇▇▇▇▇ Sachs Credit Partners L.P., Royal Bank of Canada and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and
certain of their affiliates and the lenders from time to time party thereto,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon termination or
otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time.
"CREDIT FACILITIES" means one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case, with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DAYLIGHT LOANS" means Indebtedness owed by Holdings to a third
party; provided that, on the date of incurrence of such Indebtedness, (i)
Holdings shall use all of the proceeds of such Indebtedness to subscribe and pay
for shares to be issued by Canadian Holding Company, (ii) Canadian Holding
Company shall use all of the proceeds of such issuance and sale to make payments
to MAAX Corporation in respect of the Special Intercompany Note, (iii) MAAX
Corporation shall dividend or otherwise distribute (whether by an interest-free
advance or otherwise) to Holdings all of such payments received by it and (iv)
Holdings shall use such dividend or other distribution to repay all Indebtedness
owed by it referred to in this definition.
"DEFAULT" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"DEPOSITORY" means The Depository Trust Company, New York, New York,
or a successor thereto registered under the Exchange Act or other applicable
statute or regulation.
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"DESIGNATED PREFERRED STOCK" means preferred stock (including,
without limitation, Disqualified Stock) issued and sold for cash in a bona fide
financing transaction that is designated as Designated Preferred Stock pursuant
to an Officers' Certificate on the issuance date thereof, the net cash proceeds
of which are excluded from the calculation set forth in clause (3) of the first
paragraph of Section 4.11 and are not used for purposes of clause (b) of the
second paragraph thereof.
"DISQUALIFIED STOCK" means 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 each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
issuer to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Stock if the asset
sale or change of control provisions applicable to such Capital Stock provide
that the issuer may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with Section 4.11.
The amount of Disqualified Stock deemed to be outstanding at any time for
purposes of this Indenture shall be the maximum amount that the Issuer and the
Restricted Subsidiaries may become obligated to pay upon the maturity of, or
pursuant to any mandatory redemption provisions of, such Disqualified Stock.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means (i) any issuance and sale by the Issuer of
its Qualified Equity Interests or by any Parent Company of its Equity Interests;
provided, however, that in the case of an issuance and sale of Equity Interests
of any Parent Company, cash proceeds therefrom equal to not less than 100% of
the aggregate principal amount of any Notes to be redeemed are received by the
Issuer as a contribution to its common equity capital or consideration for the
issuance and sale of Qualified Equity Interests immediately prior to such
redemption or (ii) any issuance and sale by the Issuer of its Qualified Equity
Interests in connection with the conversion of the Issuer to an income trust or
by any Parent Company or any Affiliate of the Issuer (other than any of its
Subsidiaries) of its Equity Interests in connection with the conversion of such
Parent Company or Affiliate to an income trust; provided, however, that in the
case of an issuance and sale of Equity Interests of such Parent Company or
Affiliate, cash proceeds therefrom equal to not less than the aggregate Accreted
Value of any Notes to be redeemed, plus premium and any Special Interest, are
received by the Issuer as a contribution to its common equity capital or
consideration for the issuance and sale of Qualified Equity Interests
immediately prior to such redemption.
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"EQUITY SPONSORS" means ▇▇▇▇ ▇. Childs, ▇.▇. Childs Equity Funding
III, Borealis Private Equity Limited Partnership, Borealis (QLP) Private Equity
Limited Partnership and Ontario Municipal Employees Retirement Board.
"EUROPEAN SUBSIDIARY" means any Subsidiary of the Issuer which was
not formed under the laws of the United States or any state of the United States
or the District of Columbia or under the laws of Canada or any province or
territory thereof.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"EXCHANGE OFFER" means an offer that may be made by the Issuer
pursuant to the Registration Rights Agreement to exchange Notes bearing the
Private Placement Legend for the Exchange Securities.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning given to
such term in the Registration Rights Agreement.
"EXCHANGE SECURITIES" has the meaning set forth in the Registration
Rights Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of the Issuer and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture, until such amounts are repaid.
"FAIR MARKET VALUE" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of Directors
of the Issuer.
"FIXED CHARGE COVERAGE RATIO" means, with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any Restricted Subsidiary incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made occurred (the "CALCULATION DATE"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance
or other discharge of Indebtedness, or such issuance, repurchase or redemption
of preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person or any
Restricted Subsidiary, including through mergers or consolidations, or any
Person or any Restricted
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Subsidiary acquired by the specified Person or any Restricted
Subsidiary, and including any related financing transactions and including
increases in ownership of Restricted Subsidiaries, during the four-quarter
reference period or subsequent to such reference period and on or prior to
the Calculation Date shall be given pro forma effect (in accordance with
Regulation S-X under the Securities Act but giving effect to Pro Forma
Cost Savings) as if they had occurred on the first day of the four-quarter
reference period;
(2) the Consolidated Cash Flow attributable to operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date shall be excluded;
(3) the Fixed Charges attributable to operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date
shall be excluded, but only to the extent that the obligations giving rise
to such Fixed Charges shall not be obligations of the specified Person or
any Restricted Subsidiary following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation
Date (or would become a Restricted Subsidiary on such Calculation Date in
connection with the transaction requiring determination of such
Consolidated Cash Flow) shall be deemed to have been a Restricted
Subsidiary at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date (or would cease to be a Restricted Subsidiary on such
Calculation Date in connection with the transaction requiring
determination of such Consolidated Cash Flow) shall be deemed not to have
been a Restricted Subsidiary at any time during such four-quarter period;
and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness shall be calculated as if the rate
in effect on the Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligation applicable to
such Indebtedness if such Hedging Obligation has a remaining term as at
the Calculation Date in excess of 12 months).
"FIXED CHARGES" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations in respect of
interest rates; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
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(3) any interest accruing on Indebtedness of another 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; plus
(4) the product of (a) all dividends, whether paid or accrued and
whether or not in cash, on any series of preferred stock of such Person or
any Restricted Subsidiary, other than dividends on Equity Interests
payable solely in Equity Interests of the Issuer (other than Disqualified
Stock) or to the Issuer or a Restricted Subsidiary of the Issuer, times
(b) 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
tax rate of such Person, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.
"FULL ACCRETION DATE" shall mean December 15, 2008.
"GAAP" means generally accepted accounting principles in the United
States of America, as set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession which are in
effect from time to time.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"GUARANTEE" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner, including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (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
condition or otherwise).
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person under swap, cap, collar, forward purchase or similar agreements or
arrangements dealing with interest rates, currency exchange rates or commodity
prices, either generally or under specific contingencies.
"HOLDER" means any registered Holder, from time to time, of the
Notes.
"HOLDINGS" means Beauceland Corporation, a Nova Scotia unlimited
company.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
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(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of bankers' acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase
price of any property or services due more than six months after such
property is acquired or such services are completed, except any such
balance that represents an accrued expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person), but only to the extent that the aggregate amount of such
Indebtedness does not exceed the Fair Market Value of the asset, and, to the
extent not otherwise included, the guarantee by the specified Person of any
Indebtedness of any other Person. In no event shall obligations or liabilities
in respect of any Capital Stock constitute Indebtedness hereunder.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"INITIAL GLOBAL NOTES" has the meaning given to such term in Section
2.01.
"INITIAL NOTES" has the meaning given to such term in Section 2.02.
"INITIAL PURCHASER" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
"INSTITUTIONAL ACCREDITED INVESTOR" or "IAI" means an "accredited
investor" with the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"INTEREST" means, with respect to the Notes, interest and Special
Interest, if any, on the Notes.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment
of interest on the Notes.
"INVESTMENTS" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including
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guarantees or other obligations), advances or capital contributions, purchases
or other acquisitions for consideration of Indebtedness, Equity Interests or
other securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Issuer
or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests
of any Restricted Subsidiary such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary, the Issuer shall
be deemed to have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Issuer's Investments in such Restricted
Subsidiary that were not sold or disposed of in an amount determined as provided
in the penultimate paragraph of Section 4.11. The acquisition by the Issuer or
any Restricted Subsidiary of a Person that holds an Investment in a third Person
shall be deemed to be an Investment by the Issuer or such Restricted Subsidiary
in such third Person in an amount equal to the Fair Market Value of the
Investments held by the acquired Person in such third Person in an amount
determined as provided in the penultimate paragraph of Section 4.11. Except as
otherwise provided in this Indenture, the amount of an Investment shall be
determined at the time the Investment is made and without giving effect to
subsequent changes in value. Notwithstanding the foregoing, Restricted Payments
of the type described in clause (ii) of the definition thereof shall not be
deemed to be Investments.
"ISSUE DATE" means December 10, 2004.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothec or encumbrance of any kind in respect of
such asset, whether or not filed, recorded, registered or otherwise perfected
under applicable law, including any conditional sale or other title retention
agreement; provided that in no event shall an operating lease that is not a
Capital Lease Obligation be deemed to constitute a Lien.
"MAAX CORPORATION NOTES" means the 9.75% Senior Subordinated Notes
due 2012 issued by MAAX Corporation under the indenture, dated as of June 4,
2004, between MAAX Corporation, the guarantors party thereto, and U.S. Bank
Trust National Association, as trustee.
"MATURITY DATE" means June 15, 2012.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Issuer or any Restricted Subsidiary in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, (a) fees and
expenses related to such Asset Sale (including legal, accounting and investment
banking fees and discounts, and sales and brokerage commissions, and any
relocation expenses incurred as a result of the Asset Sale), (b) taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, (c)
amounts required to be applied to the repayment of Indebtedness, other than
Indebtedness under a Credit Facility, secured by a Lien on the asset or assets
that were the subject of such Asset Sale, (d) any reserve in accordance with
GAAP against any liabilities associated with such Asset
-16-
Sale and retained by the seller after such Asset Sale, including pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale and (e) cash escrows (until released from escrow to the seller).
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Issuer nor any Restricted Subsidiary (a)
provides credit support of any kind (including any undertaking, agreement
or instrument that would constitute Indebtedness), (b) is directly or
indirectly liable as a guarantor or otherwise, or (c) constitutes the
lender;
(2) no default with respect to which would permit upon notice, lapse
of time or both any Holder of any Indebtedness of the Issuer or any
Restricted Subsidiary to declare a default on such Indebtedness or cause
the payment of the Indebtedness to be accelerated or payable prior to its
Stated Maturity; and
(3) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Issuer or any
Restricted Subsidiary.
"NON-U.S. PERSON" has the meaning assigned to such term in
Regulation S.
"NOTES" means, collectively, the Issuer's 11.25% Senior Discount
Notes due 2012 issued in accordance with Section 2.02 (whether issued on the
Issue Date, issued as Additional Notes, issued as Exchange Securities or
otherwise issued after the Issue Date) treated as a single class of securities
under this Indenture, as amended or supplemented from time to time in accordance
with the terms of this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING MEMORANDUM" means the offering memorandum of the Issuer
relating to the Notes dated December 3, 2004.
"OFFICER" means any of the following of the Issuer: the Chairman of
the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer or the Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Issuer or the Trustee.
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"PARENT COMPANIES" means any company that directly or indirectly
owns a majority of the Equity Interests of the Issuer.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the Issuer that
ranks pari passu in right of payment with the Notes.
"PERMANENT REGULATION S GLOBAL NOTE" has the meaning given to such
term in Section 2.01.
"PERMITTED BUSINESS" means any business conducted by the Issuer or
any Restricted Subsidiary on the Issue Date and any businesses that, in the good
faith judgment of the Board of Directors of the Issuer, are reasonably related,
ancillary or complementary thereto, or reasonable extensions thereof.
"PERMITTED FACTORING ARRANGEMENTS" means the Sodex Factoring
Agreement, as amended from time to time, and other factoring agreements on
similar terms, as amended from time to time, that, in each case, are not
materially less favorable to the Issuer and the Restricted Subsidiaries, taken
as a whole, than the arrangements contained in the Sodex Factoring Agreement, as
in effect on the Issue Date.
"PERMITTED INVESTMENTS" means:
(1) any Investment in Cash Equivalents;
(2) any Investment in the Issuer or in a Restricted Subsidiary;
(3) any Investment by the Issuer or any Restricted Subsidiary in a
Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Issuer or a Restricted Subsidiary;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.13;
(5) any Investment made for consideration consisting of Qualified
Equity Interests;
(6) any Investment received in compromise or resolution of (A)
obligations of trade creditors or customers that were incurred in the
ordinary course of business of the Issuer or any Restricted Subsidiary,
including pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of any trade creditor or customer; or
(B) litigation, arbitration or other disputes with Persons that are not
Affiliates;
-18-
(7) Investments represented by Hedging Obligations permitted under
this Indenture;
(8) loans or advances to employees of the Issuer or any of its
Subsidiaries (x) in the ordinary course of business in an aggregate amount
not to exceed $5.0 million at any time outstanding or (y) in connection
with the purchase by such Persons of Equity Interests of the Issuer or any
Parent Company so long as the cash proceeds of such purchase received by
any Parent Company are contemporaneously contributed to the common equity
capital of the Issuer;
(9) Investments in existence on the Issue Date;
(10) Investments in prepaid expenses, negotiable instruments held
for collection and lease, endorsements for deposit or collection in the
ordinary course of business, utility or workers compensation, performance
and similar deposits entered into as a result of the operations of the
business in the ordinary course of business;
(11) pledges or deposits permitted under clause (6) of the
definition of Permitted Liens;
(12) receivables owing to the Issuer or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms as the Issuer or
such Restricted Subsidiary deems reasonable under the circumstances; and
(13) other Investments in any Person having an aggregate Fair Market
Value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (13) that are at the
time outstanding, not to exceed the greater of (x) $20.0 million and (y)
7.0% of Consolidated Net Tangible Assets at such time.
"PERMITTED LIENS" means:
(1) Liens securing Indebtedness of any Restricted Subsidiary;
(2) Liens on assets of the Issuer securing Indebtedness and other
Obligations under Credit Facilities and/or securing Hedging Obligations;
(3) Liens in favor of the Issuer or any Restricted Subsidiary;
(4) Liens on property (including Capital Stock) of a Person existing
at the time such Person is merged with or into or consolidated with the
Issuer or any Subsidiary of the Issuer; provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and
do not extend to any assets other than those of the Person merged into or
consolidated with the Issuer or the Subsidiary;
-19-
(5) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by the Issuer or any Subsidiary of the
Issuer; provided that such Liens were in existence prior to, such
acquisition, and not incurred in contemplation of, such acquisition;
(6) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(7) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of Section 4.10(b) covering only the
assets acquired with or financed by such Indebtedness;
(8) Liens existing on the date of this Indenture;
(9) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent more than 30 days or that are being contested
in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;
(10) Liens imposed by law, such as carriers', warehousemen's,
landlords', suppliers' and mechanics' Liens, in each case, incurred in the
ordinary course of business;
(11) survey exceptions, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real property that were not incurred in
connection with Indebtedness and that do not in the aggregate materially
adversely affect the operation of the business of the Issuer and its
Restricted Subsidiaries, taken as a whole;
(12) Liens created for the benefit of (or to secure) the Notes or
payment obligations to the Trustee;
(13) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided, however, that the
new Lien shall be limited to all or part of the same property and assets
that secured or, under the written agreements pursuant to which the
original Lien arose, could secure the original Lien (plus improvements and
accessions to such property or proceeds or distributions thereof);
(14) judgment Liens not giving rise to an Event of Default;
(15) Liens and rights of setoff in favor of a bank imposed by law
and incurred in the ordinary course of business on deposit accounts
maintained with such bank and cash and Cash Equivalents in such accounts;
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(16) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(17) pledges or deposits by a Person under worker's compensation
laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits as security for contested taxes or import duties or for the
payment of rent, in each case incurred in the ordinary course of business;
(18) Liens securing obligations under Permitted Factoring
Arrangements on the accounts receivable subject to Permitted Factoring
Arrangements; and
(19) Liens incurred in the ordinary course of business of the Issuer
or any Restricted Subsidiary with respect to obligations that do not
exceed $7.5 million at any one time outstanding.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Issuer or any Restricted Subsidiary issued in exchange for, or the net proceeds
of which are used to refund, refinance, replace, defease or discharge, other
Indebtedness of the Issuer or any Restricted Subsidiary; provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity
date not earlier than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness is subordinated in right of
payment to, the Notes on terms at least as favorable to the Holders as
those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Issuer or by the
Restricted Subsidiary that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
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"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, unlimited company or government or other entity.
"PRINCIPAL" means, with respect to the Notes, the principal of, and
premium, if any, on the Notes.
"PRIVATE PLACEMENT LEGEND" means the legends initially set forth on
the Notes in the form set forth in Exhibit B.
"PRO FORMA COST SAVINGS" means, with respect to any period, the
reductions in costs that occurred during the four-quarter period that are (1)
directly attributable to an asset acquisition and calculated on a basis that is
consistent with Article 11 of Regulation S-X under the Securities Act or (2)
implemented, committed to be implemented or the commencement of implementation
of which was begun in good faith by the business that was the subject of any
such asset acquisition within six months of the date of the asset acquisition
and that are supportable and quantifiable by the underlying records of such
business, as if, in the case of each of clauses (1) and (2), all such reductions
in costs had been effected as of the beginning of such period, decreased by any
incremental expenses incurred or to be incurred during the four-quarter period
in order to achieve such reduction in costs.
"QUALIFIED EQUITY INTERESTS" means Equity Interests of the Issuer
other than Disqualified Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"RECORD DATE" means the applicable Record Date specified in the
Notes; provided that if any such date is not a Business Day, the Record Date
shall be the first day immediately succeeding such specified day that is a
Business Day.
"REDEMPTION DATE," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
"REDEMPTION PRICE," when used with respect to any Note to be
redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Notes.
"REGISTRATION RIGHTS AGREEMENT" means (i) the Exchange and
Registration Rights Agreement dated as of the Issue Date between the Issuer and
the initial purchaser of the Notes issued on the Issue Date and (ii) any other
exchange and registration rights agreement entered into in connection with an
issuance of Additional Notes in a private offering after the Issue Date.
"REGULATION S" means Regulation S under the Securities Act.
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"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer in the Corporate Trust Office of the Trustee to whom any corporate
trust matter is referred because of such officer's knowledge of and familiarity
with the particular subject and shall also mean any officer who shall have
direct responsibility for the administration of this Indenture.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SECURITY" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary. Unless otherwise
indicated, references to Restricted Subsidiaries shall be deemed to be to
Restricted Subsidiaries of the Issuer.
"RESTRUCTURING EXPENSES" means losses, expenses and charges incurred
in connection with restructuring by the Issuer and/or one or more of the
Restricted Subsidiaries, including in connection with integration of acquired
businesses or Persons, disposition of one or more Restricted Subsidiaries or
businesses, exiting of one or more lines of business and relocation or
consolidation of facilities, including severance, lease termination and other
non-ordinary-course, non-operating costs and expenses in connection therewith.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Issuer that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date of this Indenture.
"SODEX FACTORING AGREEMENT" means that certain factoring agreement,
dated as of February 24, 2004, among MAAX Inc., MAAX Canada Inc., MAAX Spas
(Ontario) Inc., MAAX Westco Inc., MAAX Spas (BC) Inc., MAAX-KSD Corporation,
MAAX Southeast Inc., Pearl Baths, Inc., MAAX-Hydro Swirl Manufacturing Corp.,
MAAX Midwest Inc., MAAX Spas (Arizona), Inc., Cuisine Expert - C.E. Cabinets,
Inc., ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇ Plastics Company Inc. and NatExport and Sodex,
both divisions of the National Bank of Canada.
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"SPECIAL INTERCOMPANY NOTE" means that certain Note, dated on or
about June 4, 2004, made by the Canadian Holding Company in favor of MAAX
Corporation, as such Note may be amended, restated, supplemented or otherwise
modified from time to time.
"SPECIAL INTEREST" means (i) "Special Interest" as defined in the
registration rights agreement with respect to the Notes issued on the Issue Date
and (ii) "Special Interest", "Additional Interest", "Liquidated Damages" or any
similar term as such term is defined in any Registration Rights Agreement with
respect to Additional Notes issued after the Issue Date.
"STATED MATURITY" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, company, association or other business entity
of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders' agreement
that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or other
business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of
that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"TEMPORARY REGULATION S GLOBAL NOTE" has the meaning given to such
term in Section 2.01.
"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 the Fourth
Anniversary; provided, however, that if the period from such Redemption Date to
the Fourth Anniversary 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 the Fourth Anniversary 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.
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"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer (other
than Holdings or MAAX Corporation) that is designated by the Board of Directors
of the Issuer as an Unrestricted Subsidiary pursuant to a Board Resolution, but
only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.14, is not party to any
agreement, contract, arrangement or understanding with the Issuer or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Issuer or such
Restricted Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Issuer;
(3) is a Person with respect to which neither the Issuer nor any
Restricted Subsidiary has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Issuer or any Restricted
Subsidiary.
Any designation of a Subsidiary of the Issuer as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.11. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such
date and, if such Indebtedness is not permitted to be incurred as of such date
under Section 4.10, the Issuer shall be in default of such covenant. The Board
of Directors of the Issuer may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation shall be deemed to
be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (1) such Indebtedness is permitted under Section 4.10, calculated
on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be
in existence following such designation.
"U.S. LEGAL TENDER" means such coin or currency of the United States
of America that at the time of payment shall be legal tender for the payment of
public and private debts.
"VOTING STOCK" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
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"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect of the Indebtedness, by (b) the number of years (calculated to the
nearest one-twelfth) that shall elapse between such date and the making of
such payment; by
(2) the then outstanding principal amount of such Indebtedness.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"acceleration declaration"................... 6.02
"Additional Notes"........................... 2.02
"Affiliate Transaction"...................... 4.14
"Alternate Offer" ........................... 4.09
"Asset Sale Offer" .......................... 4.13
"Asset Sale Payment Date".................... 4.13
"Authentication Order"....................... 2.02
"Change of Control Offer".................... 4.09
"Change of Control Payment".................. 4.09
"Change of Control Payment Date"............. 4.09
"Covenant Defeasance"........................ 8.04
"Event of Default"........................... 6.01
"Excess Proceeds"............................ 4.13
"Global Note"................................ 2.01
"IAI Global Note"............................ 2.01
"incur"...................................... 4.10
"Legal Defeasance"........................... 8.03
"Offered Price".............................. 4.13
"Participants"............................... 2.15
"Paying Agent"............................... 2.03
"Permitted Debt"............................. 4.10
"Physical Notes"............................. 2.01
"Registrar".................................. 2.03
"Regulation S Global Note"................... 2.01
"Restricted Payments" ....................... 4.11
"Semi-Annual Accrual Date" .................. 1.01
"Specified Date" ............................ 1.01
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, such provision is incorporated by reference in, and made a part of, this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture security Holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer or any other
obligor on the Notes.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by SEC rule and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(7) the words "including," "includes" and similar words shall be
deemed to be followed by "without limitation;" and
(8) references to "$" or dollars are to U.S. dollars and references
to "C$" and "Canadian dollars" are to Canadian dollars.
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ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Issuer shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its issuance and show
the date of its authentication.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Issuer and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of a single permanent global Note in registered form,
substantially in the form set forth in Exhibit A (the "144A GLOBAL NOTE"),
deposited with the Trustee, as custodian for the Depository, duly executed by
the Issuer and authenticated by the Trustee as hereinafter provided and shall
bear the legends set forth in Exhibit B.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Note in registered form, substantially in the form of Exhibit A (the "TEMPORARY
REGULATION S GLOBAL NOTE"), deposited with the Trustee, as custodian for the
Depository, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided and shall bear the legends set forth in Exhibit B.
Reasonably promptly following the date that is 40 days after the later of the
commencement of the offering of the Notes in reliance on Regulation S and the
Issue Date, upon receipt by the Trustee and the Issuer of a duly executed
certificate certifying that the Holder of the beneficial interest in the
Temporary Regulation S Global Note is a Non-U.S. Person, substantially in the
form of Exhibit E from the Depository, a single permanent global Note in
registered form substantially in the form of Exhibit A (the "PERMANENT
REGULATION S GLOBAL NOTE," and together with the Temporary Regulation S Global
Note, the "REGULATION S GLOBAL NOTE") duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided shall be deposited with the
Trustee, as custodian for the Depository, and the Registrar shall reflect on its
books and records the cancellation of the Temporary Regulation S Global Note and
the issuance of the Permanent Regulation S Global Note.
The initial offer and resale of the Notes shall not be to an
Institutional Accredited Investor. The Notes resold to Institutional Accredited
Investors in connection with the first transfer made pursuant to Section 2.16(a)
shall be issued initially in the form of a single permanent Global Note in
registered form, substantially in the form set forth in Exhibit A (the "IAI
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GLOBAL NOTE," and, together with the 144A Global Note and the Regulation S
Global Note, the "INITIAL GLOBAL NOTES"), deposited with the Trustee, as
custodian for the Depository, duly executed by the Issuer and authenticated by
the Trustee as hereinafter provided and shall bear the legend set forth in
Exhibit B.
Notes issued after the Issue Date shall be issued initially in the
form of one or more global Notes in registered form, substantially in the form
set forth in Exhibit A, deposited with the Trustee, as custodian for the
Depository, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided and shall bear any legends required by applicable law
(together with the Initial Global Notes, the "GLOBAL NOTES") or as Physical
Notes.
The aggregate principal amount at maturity of the Global Notes may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depository, as hereinafter provided. Notes
issued in exchange for interests in a Global Note pursuant to Section 2.16 may
be issued in the form of permanent certificated Notes in registered form in
substantially the form set forth in Exhibit A and bearing the applicable
legends, if any, (the "PHYSICAL NOTES").
SECTION 2.02. Execution, Authentication and Denomination; Additional Notes;
Exchange Securities
One Officer of the Issuer (who shall have been duly authorized by
all requisite corporate actions) shall sign the Notes for such Issuer by manual
or facsimile signature.
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 nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) on the Issue Date, Notes for
original issue in the aggregate principal amount at maturity not to exceed
$179,689,000 (the "INITIAL NOTES"), (ii) additional Notes (the "ADDITIONAL
NOTES") having identical terms and conditions to the Initial Notes, except for
issue date, issue price and, if issued on or after June 15, 2009, first interest
payment date, in an unlimited amount (so long as not otherwise prohibited by the
terms of this Indenture, including, without limitation, Section 4.10) and (iii)
Exchange Securities (x) in exchange for a like Accreted Value and principal
amount at maturity of Initial Notes or (y) in exchange for a like Accreted Value
and principal amount at maturity of Additional Notes in each case upon a written
order of the Issuer in the form of a certificate of an Officer of the Issuer (an
"AUTHENTICATION ORDER"). Each such Authentication Order shall specify the amount
of Notes to be authenticated, the date on which the Notes are to be
authenticated and the date from which the Accreted Value of such Additional Note
shall accrete, whether the Notes are to be Initial Notes, Exchange Securities or
Additional Notes and whether the Notes are to be issued as certificated Notes or
Global Notes or such other information as the Trustee may reasonably request.
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The Exchange Securities will evidence the same indebtedness of the Issuer as the
Initial Notes and the Additional Notes.
All Notes issued under this Indenture shall be treated as a single
class for all purposes under this Indenture. The Additional Notes shall bear any
legend required by applicable law.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The
Trustee shall have the right to decline to authenticate and deliver any Notes
under this Indenture if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken or if the Trustee in good faith shall
determine that such action would expose the Trustee to personal liability.
The Notes shall be issuable only in registered form without coupons
in denominations of $1,000 principal amount at maturity and integral multiples
of $1,000 thereof.
SECTION 2.03. Registrar and Paying Agent.
The Issuer shall maintain or cause to be maintained an office or
agency in the Borough of Manhattan, The City of New York, where (a) Notes may be
presented or surrendered for registration of transfer or for exchange
("REGISTRAR"), (b) Notes may, subject to Section 2 of the Notes, be presented or
surrendered for payment ("PAYING AGENT") and (c) notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The Issuer
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 Issuer of its
obligation to maintain or cause to be maintained an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Issuer or any
Subsidiary of the Issuer may act as Registrar or Paying Agent, except that for
the purposes of Article Eight, neither the Issuer nor any Affiliate of the
Issuer shall act as Paying Agent. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Issuer, upon notice to the
Trustee, may have one or more co-registrars and one or more additional paying
agents reasonably acceptable to the Trustee. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Issuer initially appoints the Trustee as Registrar and Paying Agent until
such time as the Trustee has resigned or a successor has been appointed.
The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuer shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
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SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Issuer shall require each Paying Agent other than the Trustee or
the Issuer or any Subsidiary of the Issuer to agree in writing that each Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all assets
held by the Paying Agent for the payment of Accreted Value of, premium or
Special Interest, if any, or interest on, the Notes (whether such assets have
been distributed to it by the Issuer or any other obligor on the Notes), and
shall notify the Trustee of any Default by the Issuer (or any other obligor on
the Notes) in making any such payment. The Issuer at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any Payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Issuer to the Paying Agent, the Paying Agent (if
other than the Issuer or a Subsidiary of the Issuer) shall have no further
liability for such assets. If the Issuer or a Subsidiary of the Issuer acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Issuer, the Trustee shall serve as
Paying Agent for the Notes.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Issuer shall furnish to the Trustee at least two (2)
Business Days prior to 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 Holders, which
list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to Sections 2.15 and 2.16, when Notes are presented to the
Registrar with a request to register the transfer of such Notes or to exchange
such Notes for an equal principal amount at maturity of Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Notes surrendered for transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar, duly executed by the Holder
thereof or his or her attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Notes at the Registrar's request. No service charge
shall be made for any registration of transfer or exchange, but the Issuer may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
Without the prior written consent of the Issuer, the Registrar shall
not be required to register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Notes and ending at the close of
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business on the day of such mailing, (ii) selected for redemption in whole or in
part pursuant to Article Three, except the unredeemed portion of any Note being
redeemed in part, and (iii) beginning at the opening of business on any Record
Date and ending on the close of business on the related Interest Payment Date.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Notes may be effected only through a book-entry system
maintained by the Holder of such Global Note (or its agent) in accordance with
the applicable legends thereon, and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book-entry system.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Issuer shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. Such Holder must provide an indemnity bond or
other indemnity, sufficient in the judgment of both the Issuer and the Trustee,
to protect the Issuer, the Trustee or any Agent from any loss which any of them
may suffer if a Note is replaced. The Issuer may charge such Holder for its
reasonable expenses in replacing a Note pursuant to this Section 2.07, including
reasonable fees and expenses of counsel and of the Trustee.
Every replacement Note is an additional obligation of the Issuer.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. A Note
does not cease to be outstanding because the Issuer or any of its Affiliates
hold the Note (subject to the provisions of Section 2.09).
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
a Responsible Officer of the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest ceases to accrue. If on a
Redemption Date or the Maturity Date the Trustee or Paying Agent (other than the
Issuer or an Affiliate thereof) holds U.S. Legal Tender or Government Securities
sufficient to pay all of the principal and interest due on the Notes payable on
that date, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
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SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer or any of its Affiliates shall be disregarded, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be disregarded.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may
prepare and the Trustee shall, upon receipt of an authentication order,
authenticate temporary Notes. Temporary Notes shall be substantially in the form
of definitive Notes but may have variations that the Issuer considers
appropriate for temporary Notes. Without unreasonable delay, the Issuer 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. Notwithstanding the
foregoing, so long as the Notes are represented by a Global Note, such Global
Note may be in typewritten form.
SECTION 2.11. Cancellation.
The Issuer 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 transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Issuer or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Issuer, shall dispose of all Notes surrendered for transfer,
exchange, payment or cancellation in accordance with its customary procedures.
Subject to Section 2.07, the Issuer may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation. If the Issuer
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, in any lawful manner, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Issuer may pay the
defaulted interest to the persons who are Holders on a subsequent special record
date, which date shall be the fifteenth day next preceding the date fixed by the
Issuer for the payment of defaulted interest or the next succeeding Business Day
if such date is not a Business Day. At least 15 days before any such subsequent
special record date, the Issuer or, at the Issuer's request, the Trustee, shall
mail to each Holder, with a copy to the Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
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SECTION 2.13. CUSIP and ISIN Numbers.
The Issuer in issuing the Notes may use "CUSIP" or "ISIN" numbers,
and if so, the Trustee shall use the "CUSIP" or "ISIN" numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the "CUSIP" or "ISIN" numbers 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 Issuer shall promptly notify the Trustee of any change in the
"CUSIP" or "ISIN" numbers.
SECTION 2.14. Deposit of Moneys.
Subject to Section 2 of the Notes, prior to 1:00 p.m. New York City
time on each Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Asset Sale Payment Date, the Issuer 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, Maturity Date,
Redemption Date, Change of Control Payment Date and Asset Sale Payment Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Payment Date and Asset Sale Payment Date, as the case
may be.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B, as applicable.
Members of, or participants in, the Depository ("PARTICIPANTS")
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 Note, and the Depository may be treated by the Issuer, the Trustee and
any agent of the Issuer or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) (a) the Depository notifies the Issuer that it
is unwilling or unable to act as Depository for any Global Note or (b) has
ceased to be a clearing agency registered under the Exchange Act, the Issuer so
notifies the Trustee in writing and a successor Depository is not appointed by
the Issuer within 90 days of such notice or (ii) an Event of Default has
occurred and
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is continuing and the Registrar has received a request from any owner of a
beneficial interest in a Global Note to issue Physical Notes. Upon any issuance
of a Physical Note in accordance with this Section 2.15(b) the Trustee is
required to register such Physical Note in the name of, and cause the same to be
delivered to, such person or persons (or the nominee of any thereof). All such
Physical Notes shall bear the applicable legends, if any.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b) of this Section 2.15, 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 at maturity of such Global Note in an amount equal to the
principal amount at maturity of the beneficial interest in the Global Note to be
transferred, and the Issuer shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Notes of authorized denominations in an
aggregate principal amount at maturity equal to the principal amount at maturity
of the beneficial interest in the Global Note so transferred.
(d) In connection with the transfer of a Global Note as an entirety
to beneficial owners pursuant to paragraph (b) of this Section 2.15, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and (i)
the Issuer shall execute and (ii) the Trustee shall upon written instructions
from the Issuer authenticate and deliver, to each beneficial owner identified by
the Depository in exchange for its beneficial interest in such Global Note, an
equal aggregate principal amount at maturity of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) or (c) of
this Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
SECTION 2.16. Special Transfer and Exchange Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Restricted Security to any Institutional Accredited
Investor which is not a QIB:
(i) the Registrar shall register the transfer of any Restricted
Security, 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 Issuer nor any Affiliate of the
Issuer 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)
the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto and any legal opinions and
certifications as may be reasonably requested by the Trustee and the
Issuer;
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(ii) 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 the IAI Global Note, upon receipt by the
Registrar of the Physical Note and (x) written instructions given in
accordance with the Depository's and the Registrar's procedures and (y)
the certificate, if required, referred to in clause (y) of paragraph (i)
above (and any legal opinion or other certifications), the Registrar shall
register the transfer and reflect on its books and records the date and an
increase in the principal amount at maturity of the IAI Global Note in an
amount equal to the principal amount at maturity of Physical Notes to be
transferred, and the Registrar shall cancel the Physical Notes so
transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the certificate, if required, referred to
in clause (y) of paragraph (i) above, the Registrar shall register the
transfer and reflect on its books and records the date and (A) a decrease
in the principal amount at maturity of the Global Note from which such
interests are to be transferred in an amount equal to the principal amount
at maturity of the Notes to be transferred and (B) an increase in the
principal amount at maturity of the IAI Global Note in an amount equal to
the principal amount at maturity of the Notes to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
(i) the Registrar shall register the transfer of any Restricted
Security, 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 Issuer nor any Affiliate of the
Issuer 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)
such transfer is being made by a proposed transferor who has checked the
box provided for on the applicable Global Note stating, or has otherwise
advised the Issuer and the Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee who
has signed the certification provided for on the applicable Global Note
stating, or has otherwise advised the Issuer and the Registrar in writing,
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 Issuer 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;
(ii) 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 the 144A Global Note, upon receipt by the
Registrar of the Physical Note and written instructions given in
accordance with the Depository's and the Registrar's procedures, the Reg-
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istrar shall register the transfer and reflect on its book and records the
date and an increase in the principal amount at maturity of the 144A
Global Note in an amount equal to the principal amount at maturity of
Physical Notes to be transferred, and the Registrar shall cancel the
Physical Notes so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in the IAI Global Note or the Regulation S Global
Note, upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall register the transfer and reflect on its books and records
the date and (A) a decrease in the principal amount at maturity of the IAI
Global Note or the Regulation S Global Note, as the case may be, in an
amount equal to the principal amount at maturity of the Notes to be
transferred and (B) an increase in the principal amount at maturity of the
144A Global Note in an amount equal to the principal amount at maturity of
the Notes to be transferred.
(c) Transfers of Interests in the Temporary Regulation S Global
Note. The following provisions shall apply with respect to the registration of
any proposed transfer of interests in the Temporary Regulation S Global Note:
(i) the Registrar shall register the transfer of an interest in the
Temporary Regulation S Global Note, whether or not such Global Note bears
the Private Placement Legend if the proposed transferor has delivered to
the Registrar a certificate substantially in the form of Exhibit E
stating, among other things, that the proposed transferee is a Non-U.S.
Person (except for a transfer to the Initial Purchaser);
(ii) if the proposed transferee is a Participant, upon receipt by
the Registrar of the documents referred to in clause (i)(x) above, if
required, and 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 amount of such transfer of an interest in the
Temporary Regulation S Global Note.
(d) Transfers to Non-U.S. Persons. The following provisions shall
apply with respect to any transfer of a Restricted Security to a Non-U.S. Person
under Regulation S:
(i) the Registrar shall register any proposed transfer of a
Restricted Security to a Non-U.S. Person upon receipt of a certificate
substantially in the form of Exhibit D from the proposed transferor and
such certifications, legal opinions and other information as the Trustee
or the Issuer may reasonably request; and
(ii) (a) if the proposed transferor is a Participant holding a
beneficial interest in the Rule 144A Global Note or the IAI Global Note or
the Note to be transferred consists of Physical Notes, upon receipt by the
Registrar of (x) the documents required by paragraph (i) and (y)
instructions in accordance with the Depository's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount at maturity of the Rule 144A Global
Note or the IAI Global Note, as the case may be, in an amount equal to the
principal amount at maturity of the beneficial
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interest in the Rule 144A Global Note or the IAI Global Note, as the case
may be, to be transferred or cancel the Physical Notes to be transferred,
and (b) if the proposed transferee is a Participant, 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 at maturity of
the Permanent Regulation S Global Note in an amount equal to the principal
amount at maturity of the Rule 144A Global Note, the IAI Global Note or
the Physical Notes, as the case may be, to be transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuer shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate one or more Global Notes and/or Physical Notes not
bearing the Private Placement Legend in an aggregate principal amount at
maturity equal to the principal amount at maturity of the beneficial interests
in the Initial Global Notes or Physical Notes, as the case may be, tendered for
acceptance in accordance with the Exchange Offer and accepted for exchange in
the Exchange Offer; provided that, an Exchange Security issued to a person
resident in a province or territory of Canada shall be subject to the provisions
of Exhibit B applicable to such person.
(f) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(g) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend unless otherwise
required by applicable law, the Registrar shall deliver Notes that do not bear
the Private Placement Legend. Upon the 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 Trustee an Opinion of Counsel reasonably satisfactory to the Issuer 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 offered and sold (including pursuant
to the Exchange Offer) pursuant to an effective registration statement under the
Securities Act.
(h) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it shall transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or Section 2.16. The
Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
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The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Depository Participants or
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
The Trustee shall have no responsibility for the actions or
omissions of the Depository, or the accuracy of the books and records of the
Depository.
(i) Cancellation and/or Adjustment of Global Note. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Physical Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who shall take delivery thereof in
the form of a beneficial interest in another Global Note or for Physical Notes,
the principal amount at maturity of Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Section 5 or
Section 6 of the Notes and when the Issuer is required to redeem the Notes
pursuant to Section 7 of the Notes, it shall notify the Trustee in writing of
the Redemption Date, the Redemption Price and the principal amount at maturity
of Notes (or the portion of each Note, in the case of the redemption pursuant to
Section 7 of the Notes) to be redeemed. The Issuer shall give notice of
redemption to the Trustee at least 30 days but not more than 60 days before the
Redemption Date (unless a shorter notice shall be agreed to by the Trustee),
together with such documentation and records as shall enable the Trustee to
select the Notes to be redeemed.
SECTION 3.02. Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select Notes for redemption as follows:
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(x) if the Notes are listed on any national securities exchange,
in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(y) if the Notes are not so listed, on a pro rata basis, by lot or
by such method as the Trustee shall deem fair and appropriate;
provided that, in the case of a partial redemption pursuant to Section 6 of the
Notes, the Trustee shall select the Notes or portions thereof on a pro rata
basis or on as nearly a pro rata basis as practicable (subject to the procedures
of the Depository) unless that method is otherwise prohibited.
No Notes of $1,000 principal amount at maturity or less shall be
redeemed in part. The Trustee will promptly notify the Issuer in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount at maturity thereof to be redeemed or
purchased.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Issuer shall mail or cause to be mailed a notice of redemption by first
class mail, postage prepaid, to each Holder whose Notes are to be redeemed at
its registered address (except that a notice issued in connection with a
redemption referred to in Article VIII may be more than 60 days before such
Redemption Date). At the Issuer's request, the Trustee shall forward the notice
of redemption in the Issuer's name and at the Issuer's expense. Each notice for
redemption shall identify the Notes (including the CUSIP or ISIN number) to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued
interest, if any;
(5) that, unless the Issuer defaults in making the redemption
payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Notes is to receive
payment of the Redemption Price upon surrender to the Paying
Agent of the Notes redeemed;
(6) if any Note is being redeemed in part, the portion of the
principal amount at maturity of such Note to be redeemed and
that, after the Redemption Date, and upon surrender and
cancellation of such Note, a new Note or Notes in aggregate
principal amount at maturity equal to the unredeemed portion
thereof shall be issued;
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(7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to
be redeemed, as well as the aggregate principal amount at
maturity of Notes to be redeemed and the aggregate principal
amount at maturity of Notes to be outstanding after such
partial redemption; and
(8) the Section of the Notes or this Indenture, as applicable,
pursuant to which the Notes are to be redeemed.
The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note. Notices of redemption may not be conditional.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to, but not
including, the Redemption Date), but installments of interest, the maturity of
which is on or prior to the Redemption Date, shall be payable to Holders of
record at the close of business on the relevant Record Dates. On and after the
Redemption Date interest shall cease to accrue on Notes or portions thereof
called for redemption unless the Issuer shall have not complied with its
obligations pursuant to Section 3.05.
SECTION 3.05. Deposit of Redemption Price.
On or before 1:00 p.m. New York time on the Redemption Date, the
Issuer shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price plus accrued and unpaid interest, if any, of all Notes to
be redeemed on that date.
If the Issuer complies with the preceding paragraph, then, unless
the Issuer defaults in the payment of such Redemption Price plus accrued
interest, if any, the Accreted Value of the Notes shall cease to increase and
interest on the Notes to be redeemed shall cease to accrue on and after the
applicable Redemption Date, whether or not such Notes are presented for payment.
SECTION 3.06. Notes Redeemed in Part.
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 at
maturity thereof to be redeemed. A new Note or Notes in principal amount at
maturity equal to the unredeemed portion of the original Note or Notes shall be
issued in the name of the Holder thereof upon surrender and cancellation of the
original Note or Notes.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay the Accreted Value of (and premium and Special
Interest, if any) and interest on the Notes in the manner provided in the Notes,
the Registration Rights Agreement and this Indenture. An installment of Accreted
Value or premium, if any, or interest on, the Notes shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the Issuer or a
Subsidiary of the Issuer) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment. Interest on the Notes shall be computed
on the basis of a 360-day year comprised of twelve 30-day months.
The Issuer shall pay interest on overdue principal (including,
without limitation, post petition interest in a proceeding under any Bankruptcy
Law), and overdue interest, to the extent lawful, at the same rate per annum
borne by the Notes.
SECTION 4.02. Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03 (which may be an
office of the Trustee or an affiliate of the Trustee or Registrar). The Issuer
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 Issuer shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
10.02.
The Issuer 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. The
Issuer shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Issuers hereby designate the Corporate Trust Office of the
Trustee as one such office or agency of the Issuers in accordance with Section
2.03 of this Indenture.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Section 4.13 or Article Five, the
Issuer shall do or cause to be done all things reasonably necessary to preserve
and keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each Restricted Subsidiary in accordance with
the respective organizational documents of each such Restricted Subsidiary and
the material rights (charter and statutory) and material franchises of the
Issuer and each Restricted Subsidiary; provided, however, that the Issuer shall
not be required to preserve any such right, franchise or corporate existence
with respect to itself or any Restricted Subsidi-
-42-
ary, if the loss thereof would not, individually or in the aggregate, have a
material adverse effect on the Issuer and its Subsidiaries, taken as a whole.
SECTION 4.04. Payment of Taxes.
The Issuer shall, and shall cause each of the Restricted
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, all material taxes, assessments and governmental
charges levied or imposed upon it or any of the Restricted Subsidiaries or upon
the income, profits or property of it or any of the Restricted Subsidiaries;
provided, however, that neither the Issuer nor any Restricted Subsidiary shall
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount the applicability or validity is being
contested in good faith by appropriate actions and for which appropriate
provision has been made, or any such tax, assessment, charge or claim that would
not reasonably be expected to have a material adverse effect on the Issuer and
its Subsidiaries, taken as a whole.
SECTION 4.05. Reserved.
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Issuer shall deliver to the Trustee, within 120 days after
the close of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Issuer has been made under the supervision of the signing
Officers with a view to determining whether the Issuer has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
such Officer's knowledge, the Issuer during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such covenant and no Default or
Event of Default occurred during such year and at the date of such certificate
there is no Default or Event of Default that has occurred and is continuing or,
if such signers do know of such Default or Event of Default, the certificate
shall specify such Default or Event of Default and what action, if any, the
Issuer is taking or proposes to take with respect thereto. The Officers'
Certificate shall also notify the Trustee should the Issuer elect to change the
manner in which it fixes the fiscal year end.
(b) The Issuer shall deliver to the Trustee promptly and in any
event within seven days after any Officer of the Issuer becomes aware of the
occurrence of any Default an Officers' Certificate specifying the Default or
Event of Default and what action, if any, the Issuer is taking or proposes to
take with respect thereto.
SECTION 4.07. Payments for Consent.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid or is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
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SECTION 4.08. Waiver of Stay, Extension or Usury Laws.
The Issuer covenants (to the extent permitted by applicable law)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture, and (to the extent
permitted by applicable law) the Issuer hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.09. Change of Control.
If a Change of Control occurs, the Issuer shall be required to make
an offer to purchase all Notes as described below (the "CHANGE OF CONTROL
OFFER"). In the Change of Control Offer, the Issuer shall offer a payment in
cash ("CHANGE OF CONTROL PAYMENT") equal to 101% of the Accreted Value thereof
as of the date of purchase plus accrued and unpaid interest and Special
Interest, if any, on the Notes purchased, to the date of purchase, subject to
the rights of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date. Within thirty days following any Change of
Control, the Issuer shall mail or cause to be mailed a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on the date specified in the notice (the
"CHANGE OF CONTROL PAYMENT DATE"), which date shall be a Business Day no earlier
than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures described below. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.09 and that all Notes tendered and not withdrawn shall be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the Change of Control Payment Date;
(3) that any Note not tendered shall continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to increase in Accreted Value or to accrue interest after the Change
of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Change of Control
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Payment Date, a telegram, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part shall be
issued new Notes in a principal amount at maturity equal to the
unpurchased portion of the Notes surrendered (equal to $1,000 or an
integral multiple thereof).
On the Change of Control Payment Date, the Issuer shall, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes in minimum
principal amounts at maturity equal to $1,000 or an integral multiple of
$1,000 in excess thereof, properly tendered pursuant to the Change of
Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of Notes properly
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount at maturity of Notes or portions of Notes being
purchased by the Issuer.
The Paying Agent shall promptly mail to each Holder properly
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount at maturity to any unpurchased
portion of the Notes surrendered, if any; provided that each new Note shall be
in a principal amount at maturity of $1,000 or an integral multiple of $1,000.
The Issuer shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
The Issuer shall not be required to make a Change of Control Offer
upon a Change of Control if (1) a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
set forth in this Indenture applicable to a Change of Control Offer made by the
Issuer and purchases all Notes properly tendered and not withdrawn under such
Change of Control Offer or (2) a notice of redemption has been given pursuant to
Section 8 of the Notes to redeem all outstanding Notes, unless and until there
is a default in payment of the applicable Redemption Price.
The Issuer shall comply, and shall cause any third party making a
Change of Control Offer to comply, with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with a repurchase
of the Notes as a result of a Change of Control. To the extent the provisions of
any applicable securities laws or regulations conflict with the provisions of
this Section 4.09, the Issuer shall not be deemed to have breached its
obligations under this Section 4.09 by virtue of such compliance.
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Notwithstanding the foregoing, the Issuer shall not be required to
make a Change of Control Offer, as provided above, if, in connection with or in
contemplation of any Change of Control, it or a third party has made an offer to
purchase (an "ALTERNATE OFFER") any and all Notes validly tendered at a cash
price equal to or higher than the Change of Control Payment and has purchased
all Notes properly tendered in accordance with the terms of such Alternate
Offer.
SECTION 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "INCUR") any Indebtedness (including Acquired
Debt), and the Issuer shall not issue any Disqualified Stock and shall not
permit any Restricted Subsidiary to issue any shares of preferred stock;
provided, however, that (i) the Issuer may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and any Restricted Subsidiary other
than Holdings or any Restricted Subsidiary of Holdings may incur Indebtedness
(including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage
Ratio of the Issuer for its most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the date
on which such additional Indebtedness is incurred or such Disqualified Stock or
preferred stock is issued, as the case may be, would have been at least 2.0 to
1.0 and (ii) Holdings may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, and any Restricted Subsidiary of Holdings may incur
Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed
Charge Coverage Ratio of Holdings for its most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued, as the case may be, would have
been at least 2.0 to 1.0, in each case, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock or the
preferred stock had been issued, as the case may be, at the beginning of such
four-quarter period.
(b) Notwithstanding Section 4.10(a), the incurrence of any of the
following items of Indebtedness shall be permitted (collectively, "PERMITTED
DEBT"):
(1) the incurrence by the Issuer and any Restricted Subsidiary of
Indebtedness and letters of credit under Credit Facilities in an aggregate
amount at any time outstanding under this clause (1) (with letters of
credit being deemed to have an amount equal to the maximum potential
liability of the Issuer and the Restricted Subsidiaries thereunder) not to
exceed the greater of (A) the sum of (x) $165.0 million and (y) Can$180.0
million (including the Canadian Dollar Equivalent of any amount under this
clause (y) denominated in U.S. dollars) less the aggregate amount of all
Net Proceeds of Asset Sales applied by the Issuer or any Restricted
Subsidiary since June 4, 2004 to repay any term Indebtedness under a
Credit Facility or to repay any revolving credit Indebtedness under a
Credit Facility and effect a corresponding commitment reduction thereunder
pursuant to Section 4.13 and (B) (x) in the case of the incurrence of such
Indebtedness by the Issuer or any Re-
-46-
stricted Subsidiary (other than Holdings or any Restricted Subsidiary of
Holdings), the amount that is 2.5 times Consolidated Cash Flow of the
Issuer for its most recently ended four full fiscal quarters for which
internal financial statements are available or (y) in the case of the
incurrence of such Indebtedness by Holdings or any Restricted Subsidiary
of Holdings, the amount that is 2.5 times Consolidated Cash Flow of
Holdings for its most recently ended four full fiscal quarters for which
internal financial statements are available;
(2) the incurrence by the Issuer and the Restricted Subsidiaries of
the Existing Indebtedness;
(3) the incurrence of the Notes on the Issue Date and the Exchange
Securities to be issued pursuant to the Registration Rights Agreement;
(4) the incurrence by the Issuer or any Restricted Subsidiary of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money obligations, in each case, incurred for the purpose of
financing all or any part of the purchase price or cost of design,
construction, installation or improvement of property, plant or equipment
used or useful in the business of the Issuer or any Restricted Subsidiary,
and refinancings thereof, in an aggregate amount not to exceed $10.0
million at any time outstanding;
(5) the incurrence by the Issuer or any Restricted Subsidiary of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance, replace, defease or discharge,
Indebtedness (other than intercompany Indebtedness) permitted to be
incurred under Sections 4.10(a), (b)(2), (b)(3) or (b)(5);
(6) the incurrence by the Issuer or any Restricted Subsidiary of
intercompany Indebtedness between or among the Issuer and/or any
Restricted Subsidiary; provided, however, that (i) any subsequent issuance
or transfer of Equity Interests that results in any such Indebtedness
being held by a Person other than the Issuer or a Restricted Subsidiary
and (ii) any sale or other transfer of any such Indebtedness to a Person
that is neither the Issuer nor a Restricted Subsidiary shall be deemed, in
each case, to constitute an incurrence of such Indebtedness by the Issuer
or such Restricted Subsidiary, as the case may be, that is not permitted
by this clause (6);
(7) the issuance by any of the Restricted Subsidiaries to the Issuer
or to any Restricted Subsidiary of preferred stock; provided, however,
that (a) any subsequent issuance or transfer of Equity Interests that
results in any such preferred stock being held by a Person other than the
Issuer or a Restricted Subsidiary and (b) any sale or other transfer of
any such preferred stock to a Person that is neither the Issuer nor a
Restricted Subsidiary shall be deemed, in each case, to constitute an
issuance of such preferred stock by such Restricted Subsidiary that is not
permitted by this clause (7);
(8) the incurrence by the Issuer or any Restricted Subsidiary of
Hedging Obligations in the ordinary course of business;
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(9) the guarantee by the Issuer or any Restricted Subsidiary of
Indebtedness of the Issuer or a Restricted Subsidiary that was permitted
to be incurred by another provision of this Section 4.10; provided that if
the Indebtedness being guaranteed is subordinated to the Notes, then the
guarantee shall be subordinated to the same extent as the Indebtedness
guaranteed;
(10) the incurrence by the Issuer or any Restricted Subsidiary of
Indebtedness in respect of workers' compensation claims, self-insurance
obligations, indemnities, bankers' acceptances, performance, completion
and surety bonds or guarantees, and similar types of obligations in the
ordinary course of business;
(11) the incurrence by the Issuer or any Restricted Subsidiary of
Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn
against insufficient funds, so long as such Indebtedness is covered within
five business days;
(12) the incurrence by the Issuer or any Restricted Subsidiary of
Indebtedness consisting of guarantees, earn-outs, indemnities or
obligations in respect of purchase price adjustments in connection with
the acquisition or disposition of assets, including, without limitation,
shares of Capital Stock; provided that the maximum aggregate liability in
respect of all such obligations outstanding under this clause (12) shall
at no time exceed (a) in the case of an acquisition, $10.0 million
(provided that the amount of such liability shall be deemed to be the
amount thereof, if any, reflected on the consolidated balance sheet of the
Issuer (e.g., the amount of such liability shall be deemed to be zero if
no amount is reflected on such balance sheet)) and (b) in the case of a
disposition, the gross proceeds actually received by the Issuer and the
Restricted Subsidiaries in connection with such disposition;
(13) Daylight Loans incurred by Holdings from time to time;
(14) Indebtedness in respect of Permitted Factoring Arrangements;
and
(15) the incurrence by the Issuer or any Restricted Subsidiary of
additional Indebtedness in an aggregate amount at any time outstanding,
including all Indebtedness incurred to refund, refinance, replace, defease
or discharge any Indebtedness incurred pursuant to this clause (15), not
to exceed $25.0 million.
(c) For purposes of determining compliance with this Section 4.10,
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (1) through
(15) of Section 4.10(b), or is entitled to be incurred pursuant to Section
4.10(a), the Issuer is permitted to classify such item of Indebtedness on the
date of its incurrence, or later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this Section 4.10. Indebtedness
under Credit Facilities outstanding on the Issue Date shall initially be deemed
to have been incurred on such date in reliance on the exception provided by
clause (1) of Section 4.10(b).
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(d) The accrual of interest, the accrual of dividends, the accretion
or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock in the form of additional shares of
the same class of Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.10; provided, in each such case, that the amount thereof is included in Fixed
Charges of the Issuer as accrued. Notwithstanding any other provision of this
Section 4.10, the maximum amount of Indebtedness that the Issuer or any
Restricted Subsidiary may incur pursuant to this Section 4.10 shall not be
deemed to be exceeded solely as a result of fluctuations in exchange rates or
currency values.
(e) The amount of any Indebtedness outstanding as of any date shall
be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any
other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien
on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of
determination; and
(B) the amount of the Indebtedness of the other Person that is
secured by such assets.
SECTION 4.11. Limitations on Restricted Payments.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Equity Interests of the Issuer or any
Restricted Subsidiary (including, without limitation, any payment in
connection with any merger, amalgamation or consolidation involving the
Issuer or any Restricted Subsidiary) or to the direct or indirect holders
of the Equity Interests of the Issuer or any Restricted Subsidiary in
their capacity as such (other than (A) dividends or distributions payable
in Qualified Equity Interests, (B) dividends or distributions payable to
the Issuer or any Restricted Subsidiary and (C) any dividend, payment or
distribution made with the net proceeds of the offering of the Notes
issued on the Issue Date as described in the Offering Memorandum under the
caption "Use of Proceeds";
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger,
amalgamation or consolidation involving
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the Issuer) any Equity Interests of the Issuer or any Parent Company
(other than any redemptions or repurchases made with the net proceeds of
the offering of the Notes issued on the Issue Date as described in the
Offering Memorandum under the caption "Use of Proceeds");
(iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value, any Indebtedness of the
Issuer that is contractually subordinated to the Notes (excluding any
Indebtedness owed to and held by any Restricted Subsidiary), other than
(x) payments of interest or principal at the Stated Maturity thereof and
(y) payments, purchases, redemptions, defeasances or other acquisitions or
retirements for value in anticipation of satisfying a scheduled maturity,
sinking fund or amortization or other installment obligation or mandatory
redemption, in each case, due within one year of the Stated Maturity
thereof; or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of
and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence of such Restricted Payment;
(2) (A) with respect to a Restricted Payment by the Issuer or any
Restricted Subsidiary (other than Holdings or any of its Restricted
Subsidiaries), at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, the Issuer would have
been permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in clause (i) of Section
4.10(a) (it being understood that for purposes of calculating the Fixed
Charge Coverage Ratio for this purpose only, non-cash interest expense and
amortization of original issue discount of the Issuer (but not any of its
Restricted Subsidiaries) shall be excluded) and (B) with respect to a
Restricted Payment by Holdings or any Restricted Subsidiary of Holdings,
at the time of such Restricted Payment and after giving pro forma effect
thereto as if such Restricted Payment had been made at the beginning of
the applicable four-quarter period, Holdings would have been permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in clause (ii) of Section 4.10(a);
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Issuer and the Restricted
Subsidiaries since June 4, 2004 (excluding Restricted Payments permitted
by clauses (2), (3), (4), (5), (6), (7), (8), (9) and (10) of the next
succeeding paragraph), is not greater than the sum, without duplication,
of:
(a) 50% of the Consolidated Net Income of the Issuer (it being
understood that for purposes of calculating Consolidated Net Income
pursuant to this
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clause (3)(a) only, non-cash interest expense and amortization of
original issue discount of the Issuer (but not any of its Restricted
Subsidiaries), including related tax effects, shall be excluded) for
the period (taken as one accounting period) from February 29, 2004
to the end of the Issuer's most recently ended fiscal quarter for
which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit); plus
(b) 100% of the aggregate net cash proceeds received by the
Issuer, and 100% of the Fair Market Value at the time of receipt of
assets other than cash, if any, received by the Issuer, after June
4, 2004 as a contribution to its common equity capital or from the
issue or sale of Qualified Equity Interests or from the issue or
sale (other than to a Subsidiary of the Issuer) of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Issuer that have been converted into or exchanged
for Qualified Equity Interests; plus
(c) to the extent that any Restricted Investment that was made
after June 4, 2004 is sold for cash or the Issuer or a Restricted
Subsidiary otherwise receives Cash Equivalents therefor, the return
of capital in cash or Cash Equivalents with respect to such
Restricted Investment (less the cost of disposition, if any); plus
(d) to the extent that any Unrestricted Subsidiary is
redesignated as a Restricted Subsidiary after June 4, 2004, the Fair
Market Value of the Investment of the Issuer and the Restricted
Subsidiaries in such Subsidiary as of the date of such
redesignation.
The preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of the dividend, if at the date of declaration the dividend
payment would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of
the net cash proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Issuer) of, Qualified Equity Interests or from the
substantially concurrent contribution of common equity capital to the
Issuer; provided that the amount of any such net cash proceeds that is
utilized for any such Restricted Payment shall be excluded from clause
(3)(b) of the preceding paragraph;
(3) the payment, defeasance, redemption, repurchase or other
acquisition or retirement for value of Indebtedness of the Issuer that is
contractually subordinated to the Notes with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing Indebtedness;
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(4) the payment of any dividend (or, in the case of any partnership,
limited liability company or unlimited company, any similar distribution)
by a Restricted Subsidiary of the Issuer to the holders of its Equity
Interests on a pro rata basis taking into account the relative
preferences, if any, of the various classes of equity interests in such
Restricted Subsidiary;
(5) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Issuer or any Restricted
Subsidiary, or payments by the Issuer to any Parent Company to permit, and
which are used by, any Parent Company to repurchase, redeem or otherwise
acquire or retire for value any Equity Interests of any Parent Company, in
each case, held by any current or former officer, director, consultant or
employee of the Issuer or any Restricted Subsidiary (or permitted
transferees, assigns, estates or heirs of any of the foregoing); provided
that the aggregate price paid for all such repurchased, redeemed, acquired
or retired Equity Interests may not exceed $5.0 million in any calendar
year (excluding for purposes of calculating such amount the purchase price
of Equity Interests repurchased, redeemed, acquired or retired with the
proceeds from the repayment of loans by the Issuer or a Restricted
Subsidiary made for the purpose of purchasing such Equity Interests), with
unused amounts being available to be used in the following calendar year,
but not in any succeeding calendar year;
(6) the repurchase of Equity Interests deemed to occur upon the
exercise of stock options to the extent such Equity Interests represent a
portion of the exercise price of those stock options;
(7) the declaration and payment of dividends on Designated Preferred
Stock in accordance with the certificate of designations therefor;
provided that at the time of issuance of such Designated Preferred Stock,
(A) in the case of Designated Preferred Stock of the Issuer or any
Restricted Subsidiary (other than Holdings or any of its Restricted
Subsidiaries), the Issuer would, after giving pro forma effect thereto as
if such issuance had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in clause (i) of Section 4.10(a) (it being understood that for
purposes of calculating the Fixed Charge Coverage Ratio for this purpose
only, the non-cash interest expense and amortization of original issue
discount of the Issuer (but not any of its Restricted Subsidiaries) shall
be excluded) and (B) in the case of Designated Preferred Stock of Holdings
or any Restricted Subsidiary of Holdings, Holdings would, after giving pro
forma effect thereto as if such issuance had been made at the beginning of
the applicable four-quarter period, have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in clause (ii) of Section 4.10(a);
(8) payments made to purchase, redeem, defease or otherwise acquire
or retire for value any Equity Interests of the Issuer or any Restricted
Subsidiary or any Indebtedness of the Issuer that is contractually
subordinated to the Notes, in each case, pursuant to provisions requiring
such Person to offer to purchase, redeem, defease or otherwise ac-
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quire or retire for value such Equity Interests or subordinated
Indebtedness upon the occurrence of a "change of control" or with the
proceeds of "asset sales" as defined in the charter provisions, agreements
or instruments governing such Equity Interests or subordinated
Indebtedness; provided, however, that a Change of Control Offer or Asset
Sale Offer, as applicable, has been made if and to the extent required and
the Issuer has purchased all Notes validly tendered in connection with
that Change of Control Offer or Asset Sale Offer;
(9) payments pursuant to Sections 4.14(b)(4), (8) or (10); and
(10) other Restricted Payments in an aggregate amount not to exceed
$20.0 million since June 4, 2004;
provided that in the case of any Restricted Payments pursuant to clause (5),
(7), (8) or (10), no Default shall have occurred and be continuing.
The amount of all Restricted Payments (other than cash) shall be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Issuer or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.
For purposes of determining compliance with this Section 4.11, if a
Restricted Payment meets the criteria of more than one of the exceptions
described in clauses (1) through (10) above or is entitled to be made according
to Section 4.11(a), the Issuer may, in its sole discretion, classify the
Restricted Payment in any manner that complies with this Section 4.11.
SECTION 4.12. Limitations on Liens.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien of
any kind on any asset now owned or hereafter acquired, except Permitted Liens,
which Lien secures Indebtedness or trade payables, unless contemporaneously
therewith:
(1) in the case of any Lien securing an obligation that ranks pari
passu with the Notes, effective provision is made to secure the Notes, at
least equally and ratably with or prior to such obligation with a Lien on
the same collateral; and
(2) in the case of any Lien securing an obligation that is
subordinated in right of payment to the Notes, effective provision is made
to secure the Notes, with a Lien on the same collateral that is prior to
the Lien securing such subordinated obligation,
in each case, for so long as such obligation is secured by such Lien.
SECTION 4.13. Limitations on Asset Sales.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary to, consummate an Asset Sale unless:
(1) the Issuer (or a Restricted Subsidiary) receives consideration
at the time of the Asset Sale at least equal to the Fair Market Value of
the assets or Equity Interests issued or sold or otherwise disposed of;
and
(2) at least 75% of the consideration received in the Asset Sale by
the Issuer or such Restricted Subsidiary is in the form of cash or Cash
Equivalents.
(b) For purposes of Section 4.13(a), each of the following shall be
deemed to be cash:
(1) any liabilities, as shown on the Issuer's most recent
consolidated balance sheet, of the Issuer or any Restricted Subsidiary
(other than liabilities that are by their terms subordinated to the Notes)
that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Issuer or such Restricted
Subsidiary from such liabilities;
(2) any securities, notes or other obligations received by the
Issuer or any such Restricted Subsidiary from such transferee that are,
within 180 days of the Asset Sale, converted by the Issuer or such
Restricted Subsidiary into cash or Cash Equivalents, to the extent of the
cash or Cash Equivalents received in that conversion; and
(3) any stock or assets of the kind referred to in clause (2) or (4)
of Section 4.13(c).
(c) Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Issuer (or a Restricted Subsidiary) may apply those Net Proceeds
at its option:
(1) to repay any Indebtedness of a Restricted Subsidiary and, if the
Indebtedness repaid is revolving credit Indebtedness, to correspondingly
reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any
Capital Stock of, a Person engaged in a Permitted Business; provided that
in the case of acquisition of Capital Stock of any Person, such
acquisition is permitted by Section 4.11 (without giving effect to clause
(4) of the definition of "Permitted Investments");
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current
assets under GAAP and that are used or useful in a Permitted Business.
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Pending the final application of any Net Proceeds, the Issuer (or a
Restricted Subsidiary) may temporarily reduce revolving credit borrowings or
otherwise invest the Net Proceeds in any manner that is not prohibited by this
Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in Section 4.13(b) shall constitute "EXCESS PROCEEDS." When
the aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuer shall
make an offer to purchase (an "ASSET SALE OFFER"), to all Holders and all
holders of other Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets, the maximum Accreted
Value of Notes and the maximum amount of such other pari passu Indebtedness that
may be purchased out of the Excess Proceeds (the "PAYMENT AMOUNT") provided,
however, notwithstanding the foregoing, in the case of an Asset Sale by a
Restricted Subsidiary of the Issuer, the Issuer shall not be required to make an
Asset Sale Offer to the extent such Restricted Subsidiary is not permitted
pursuant to the terms of its outstanding Indebtedness or applicable law to make
such Net Proceeds available to the Issuer to fund such Asset Sale Offer. The
offer price for the Notes in any Asset Sale Offer shall be equal to 100% of the
Accreted Value thereof as of the date of purchase plus accrued and unpaid
interest and Special Interest thereon, if any, to the date of purchase (the
"OFFERED PRICE"), and shall be payable in cash, and the offer or redemption
price for such pari passu Indebtedness shall be as set forth in the related
documentation governing such Indebtedness. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
Accreted Value of Notes and amount of other pari passu Indebtedness tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(e) Upon the commencement of a Asset Sale Offer, the Issuer shall
send, by first class mail, a notice to the Trustee and to each Holder at is
registered address. The notice shall contain all instructions and materials
necessary to enable such Holder to tender Notes pursuant to the Asset Sale
Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section;
(2) the Payment Amount, the Offered Price, and the date on which
Notes tendered and accepted for payment shall be purchased, which date
shall be at least 30 days and not later than 60 days from the date such
notices is mailed (the "ASSET SALE PAYMENT DATE");
(3) that any Notes not tendered or accepted for payment shall
continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any
Notes accepted for payment pursuant to the Asset Sale Offer shall cease to
increase in Accreted Value or to accrue interest on and after the Asset
Sale Payment Date;
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(5) that Holders electing to have any Notes purchased pursuant to
any Asset Sale Offer shall be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to the Issuer, a
depository, if appointed by the Issuer, or the Paying Agent at the address
specified in the notice at least three days before the Asset Sale Payment
Date;
(6) that Holders shall be entitled to withdraw their election if the
Issuer, the Depository or the Paying Agent, as the case may be, receives,
not later than the Asset Sale Payment Date, a notice setting forth the
name of the Holder, the principal amount at maturity of the Note the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(7) that if the aggregate principal amount at maturity of Notes
surrendered by Holders exceeds the Payment Amount, the Issuer shall select
the Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Issuer so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(8) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount at maturity to the unpurchased
portion of the Notes surrendered (or transferred by book-entry).
(f) On the Asset Sale Payment Date, the Issuer shall, to the extent
lawful: (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Asset Sale Offer, subject to pro ration if the aggregate Notes
tendered exceed the Payment Amount allocable to the Notes; (2) deposit with the
Paying Agent U.S. Legal Tender equal to the lesser of the Payment Amount
allocable to the Notes and the amount sufficient to pay the Offered Price in
respect of all Notes or portions thereof so tendered; and (3) deliver or cause
to be delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount at maturity of Notes or
portions thereof being repurchased by the Issuer. The Issuer shall publicly
announce the results of the Asset Sale Offer on the Asset Sale Payment Date.
(g) The Paying Agent shall promptly mail to each Holder so tendered
the Offered Price for such Notes, and the Trustee shall promptly authenticate
pursuant to an Authentication Order and mail (or cause to be transferred by
book-entry) to each Holder a new Note equal in principal amount at maturity to
any unrepurchased portion of the Notes surrendered, if any; provided that each
such new Note shall be in principal amount at maturity of $1,000 or an integral
multiple thereof. However, if the Asset Sale Payment Date is on or after an
interest record date and on or before the related Interest Payment Date, any
accrued and unpaid interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
The Issuer shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer.
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To the extent that the provisions of any securities laws or regulations conflict
with the Asset Sale provisions of this Section 4.13, the Issuer shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.13 by virtue of such
compliance.
SECTION 4.14. Limitations on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Issuer (each, an "AFFILIATE TRANSACTION"), unless:
(1) the Affiliate Transaction is on terms that are not materially
less favorable to the Issuer or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Issuer delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, a resolution of the Board of Directors of
the Issuer set forth in an Officers' Certificate certifying that
such Affiliate Transaction complies with this Section 4.14 and that
such Affiliate Transaction has been approved by a majority of the
disinterested members of such Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $20.0 million, an opinion as to the fairness to the Issuer
or such Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or
investment banking firm of national standing in the United States or
Canada.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of the prior
paragraph:
(1) reasonable director, officer, consultant and employee
compensation, benefit and indemnification agreements, plans and
arrangements entered into by the Issuer or any Restricted Subsidiary in
the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Issuer and/or the Restricted
Subsidiaries;
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(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Issuer) that is an Affiliate of the Issuer solely
because the Issuer owns, directly or through a Restricted Subsidiary, an
Equity Interest in, or controls, such Person;
(4) to the extent that the Issuer or one or more of the Restricted
Subsidiaries are members of a consolidated, combined or similar income tax
group of which a direct or indirect parent of the Issuer is the common
parent, payment of dividends or other distributions by the Issuer or one
or more of the Restricted Subsidiaries pursuant to a tax sharing agreement
or otherwise to the extent necessary to pay, and which are used to pay,
any income taxes of such tax group that are attributable to the Issuer
and/or the Restricted Subsidiaries and are not payable directly by the
Issuer and/or the Restricted Subsidiaries; provided that the amount of any
such dividends or distributions (plus any such taxes payable directly by
the Issuer and/or the Restricted Subsidiaries) shall not exceed the amount
of such taxes that would have been payable directly by the Issuer and/or
the Restricted Subsidiaries had the Issuer been the U.S. common parent of
a separate tax group that included only the Issuer and the Restricted
Subsidiaries;
(5) any issuance of Qualified Equity Interests (and the exercise of
any warrants, options or other rights to acquire Qualified Equity
Interests);
(6) Restricted Payments that do not violate Section 4.11;
(7) loans or advances to employees of the Issuer or any Restricted
Subsidiary (x) in the ordinary course of business in an aggregate amount
not to exceed $5.0 million at any time outstanding or (y) in connection
with the purchase by such Persons of Equity Interests of the Issuer or any
Parent Company so long as the cash proceeds of such purchase received by
any Parent Company are contemporaneously contributed to the common equity
capital of the Issuer;
(8) payments by the Issuer to or on behalf of any Parent Company in
an amount sufficient to pay out-of-pocket legal, accounting and filing and
other general corporate overhead costs of such Parent Company and
franchise taxes and other fees required to maintain its existence actually
incurred by such Parent Company, in any case in an aggregate amount not to
exceed $1.0 million in any calendar year;
(9) the agreements described in the Offering Memorandum under the
caption "Certain Relationships and Related Party Transactions," as in
effect on the date of this Indenture or as amended thereafter (so long as
the amended agreement is not more disadvantageous to the Holders, taken as
a whole, in any material respect than such agreement immediately prior to
such amendment) or any transaction contemplated thereby (other than
payment of management fees referred to in clause (10) below); and
(10) so long as no Event of Default exists, the existence or
performance by the Issuer or any Restricted Subsidiary of the provisions
of the Management Agreement described in the Offering Memorandum under
"Certain Relationships and Related Party Transactions" or any amendment
thereto or replacement agreement therefor or any transaction
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contemplated thereby so long as such amendment or replacement is not more
disadvantageous to the Holders, taken as a whole, in any material respect
than the original agreements as in effect on the date of this Indenture.
SECTION 4.15. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Issuer or any Restricted Subsidiary, or with respect to any
other interest or participation in, or measured by, its profits, or pay
any Indebtedness owed to the Issuer or any Restricted Subsidiary;
(2) make loans or advances to the Issuer or any Restricted
Subsidiary; or
(3) transfer any of its properties or assets to the Issuer or any
Restricted Subsidiary.
However, the preceding restrictions shall not apply to encumbrances
or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness (including the MAAX
Corporation Notes) and Credit Facilities as in effect on the date of this
Indenture and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of those
agreements; provided that the amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
are no more restrictive, taken as a whole, with respect to such dividend
and other payment restrictions than those contained in those agreements on
the date of this Indenture;
(2) this Indenture and the Notes;
(3) applicable law, rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Issuer or any Restricted Subsidiary as in effect at
the time of such acquisition (except to the extent such Indebtedness or
Capital Stock was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired; provided that, in
the case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred;
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(5) customary non-assignment provisions in contracts and licenses
entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary
course of business and Capital Lease Obligations that impose restrictions
on the property purchased or leased of the nature described in clause (3)
of the preceding paragraph;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary or an asset that restricts distributions by that Restricted
Subsidiary or transfers of such asset pending the sale or other
disposition;
(8) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness
being refinanced;
(9) Liens permitted to be incurred under the provisions of Section
4.12 that limit the right of the debtor to dispose of the assets subject
to such Liens;
(10) provisions limiting the disposition or distribution of assets
or property in joint venture agreements, partnership agreements, limited
liability company operating agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar
agreements entered into with the approval of the Board of Directors of the
Issuer, which limitation is applicable only to the assets that are the
subject of such agreements;
(11) restrictions on cash or other deposits or net worth imposed
under contracts entered into in the ordinary course of business;
(12) restrictions under Permitted Factoring Arrangements on the
disposition of accounts receivable subject to Permitted Factoring
Arrangements; and
(13) agreements governing Indebtedness permitted to be incurred
pursuant to Section 4.10; provided that either (a) the provisions relating
to such encumbrance or restriction contained in such Indebtedness, taken
as a whole, are not materially more restrictive with respect to such
dividend and other payment restrictions, as determined by the Board of
Directors of the Issuer, in its reasonable and good faith judgment, than
the provisions contained in the Credit Agreement or this Indenture as in
effect on the date of this Indenture or (b) such encumbrance or
restriction contained in such indebtedness does not prohibit (except upon
a default or event of default thereunder or, if after giving effect to any
such dividend, a default or event of default would occur thereunder) the
payment of dividends in an amount sufficient, as determined by the Board
of Directors of the Issuer, in its reasonable and good faith judgment, to
make scheduled cash payments on the Notes when due.
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SECTION 4.16. Limitations on Layering Indebtedness.
The Issuer shall not, directly or indirectly, incur any Indebtedness
that is or purports to be by its terms (or by the terms of any agreement
governing such Indebtedness) subordinated to any other Indebtedness of the
Issuer, unless such Indebtedness is also by its terms (or by the terms of any
agreement governing such Indebtedness) made expressly subordinate to the Notes,
to the same extent and in the same manner as such Indebtedness is subordinated
to such other Indebtedness of the Issuer.
For purposes of the foregoing, no Indebtedness will be deemed to be
subordinated in right of payment to any other Indebtedness of the Issuer solely
by virtue of being unsecured or secured by a junior priority Lien or by virtue
of the fact that the holders of such Indebtedness have entered into
intercreditor agreements or other arrangements giving one or more of such
holders priority over the other holders in the collateral held by them.
SECTION 4.17. Reports to Holders.
So long as any Notes are outstanding, the Issuer shall furnish to
the Holders or cause the Trustee to furnish to the Holders, within the time
periods that such information would have otherwise been required to have been
provided to the SEC if the rules and regulations applicable to the filing of
such information were applicable to the Issuer:
(1) all quarterly and annual information that would be required to
be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required
to file such reports; and
(2) all current reports that would be required to be filed with the
SEC on Form 8-K if the Issuer were required to file such reports.
The availability of the foregoing materials on either the SEC's
▇▇▇▇▇ service or on the Issuer's or MAAX Corporation's website shall be deemed
to satisfy the Issuer's delivery obligation.
All such reports shall be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports.
Each annual report shall include a report on the Issuer's consolidated financial
statements by the Issuer's certified independent accountants. In addition, the
Issuer shall cause a copy of all of the information and reports referred to in
clauses (1) and (2) above to be posted no later than the date such information
is required to be furnished to registered Holders, on the website of the Issuer
or MAAX Corporation (and remain there for a period of one year from the date of
such posting). The Issuer shall also agree that, for so long as any Notes remain
outstanding, if at any time the Issuer is not required to file reports under the
Exchange Act with the SEC, the Issuer shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
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SECTION 4.18. Limitations on Designation of Restricted and Unrestricted
Subsidiaries.
The Board of Directors of the Issuer may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Issuer and the Restricted Subsidiaries in the Subsidiary designated as an
Unrestricted Subsidiary shall be deemed to be an Investment made as of the time
of the designation and shall reduce the amount available for Restricted Payments
under Section 4.11 or under one or more clauses of the definition of "Permitted
Investments," as determined by the Issuer. That designation shall only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of the Issuer may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.
SECTION 4.19. Business Activities.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Issuer and its Restricted Subsidiaries
taken as a whole.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations, Etc.
The Issuer may not, directly or indirectly: (1) consolidate,
amalgamate or merge with or into another Person (whether or not the Issuer is
the surviving Person); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Issuer
and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
(1) either: (a) the Issuer is the surviving Person; or (b) the
Person formed by or surviving any such consolidation, amalgamation or
merger (if other than the Issuer) or to which such sale, assignment,
transfer, conveyance or other disposition has been made (x) is a
corporation, organized or existing under the laws of the United States,
any state of the United States or the District of Columbia and (y) assumes
all the obligations of the Issuer under the Notes, this Indenture and the
Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee;
(2) immediately after such transaction, no Default or Event of
Default exists; and
(3) either (a) the Issuer or the Person formed by or surviving any
such consolidation, amalgamation or merger (if other than the Issuer), or
to which such sale,
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assignment, transfer, conveyance or other disposition has been made,
shall, on the date of such transaction after giving pro forma effect
thereto and to any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in clause (i) of Section
4.10(a) or (b) the Fixed Charge Coverage Ratio of the Issuer or the Person
formed by or surviving any such consolidation, amalgamation or merger (if
other than the Issuer), or to which such sale, assignment, transfer,
conveyance or other disposition has been made, after giving effect to the
transaction and any related financings, would not be less than the Fixed
Charge Coverage Ratio of the Issuer immediately prior to such transaction.
In addition, the Issuer may not, directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries, the Equity Interests of which constitute all or substantially all
of the properties and assets of the Issuer, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Issuer.
This Section 5.01 shall not apply to a merger of the Issuer with an
Affiliate solely for the purpose, and with the effect, of reincorporating the
Issuer, in another jurisdiction of the United States. In addition, nothing in
this Section 5.01 shall prohibit any Restricted Subsidiary from consolidating or
amalgamating with, merging with or into or conveying, transferring or leasing,
in one transaction or a series of transactions, all or substantially all of its
assets to the Issuer or another Restricted Subsidiary.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following is an "EVENT OF DEFAULT":
(1) default for 30 days in the payment when due of interest on, or
Special Interest with respect to, the Notes;
(2) default in payment when due of the Accreted Value of, or
premium, if any, on the Notes;
(3) failure by the Issuer or any Restricted Subsidiary to comply (a)
for 30 days after written notice with the provisions described under
Sections 4.09 and 4.13 or (b) with Section 5.01;
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(4) failure by the Issuer or any Restricted Subsidiary for 60 days
after written notice has been given to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount at maturity of the Notes then outstanding to comply with
any of the other agreements in this Indenture;
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Issuer or any Restricted Subsidiary
(or the payment of which is guaranteed by the Issuer or any Restricted
Subsidiary), whether such Indebtedness or guarantee now exists or is
created after the Issue Date, if that default:
(a) is caused by a failure to pay any such Indebtedness at its
stated final maturity after giving effect to any applicable grace
periods (a "PAYMENT DEFAULT"); or
(b) results in the acceleration of such Indebtedness prior to
its stated final maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $20.0 million or more;
(6) failure by the Issuer or any Restricted Subsidiary to pay final
judgments aggregating in excess of $20.0 million in excess of amounts that
are covered by insurance, which judgments are not paid, discharged or
stayed for a period of 60 days;
(7) the Issuer or any of the Issuer's Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary as debtor in an
involuntary case, pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding,
(b) consents to the entry of an order for relief or decree
against it in an involuntary case or proceeding,
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its assets, or
(d) makes a general assignment for the benefit of its
creditors;
(e) admits in writing its inability to pay its debts generally
as they become due; or
(f) files a petition or answer or consent seeking
reorganization or relief; and
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(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Issuer or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary as debtor in an involuntary case or
proceeding;
(b) appoints a Custodian of the Issuer or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, or a Custodian for all or
substantially all of the assets of the Issuer or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary or adjudges any such entity or
group a bankrupt or insolvent or approves as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of such entity or group; or
(c) orders the winding up or liquidation of the Issuer or any
of its Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary.
and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02. Acceleration.
(a) In the case of an Event of Default specified in clause (7) or
(8) of Section 6.01, with respect to the Issuer, any Restricted Subsidiary that
is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes shall
become due and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount at maturity of the then outstanding Notes may
declare (an "ACCELERATION DECLARATION") all the Notes to be due and payable.
Upon an acceleration declaration, the Accreted Value of and accrued and unpaid
interest and Special Interest, if any, on the outstanding Notes shall become due
and payable immediately without further action or notice; provided, however,
that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount at
maturity of such outstanding Notes may rescind and annul such acceleration:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default have been cured or waived
except nonpayment of accelerated Accreted Value and interest that has
become due solely because of this acceleration;
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(3) if the Issuer has paid to the Trustee its reasonable
compensation and reimbursed the Trustee of its expenses, disbursements and
advances; and
(4) in the event of a cure or waiver of an Event of Default of the
type set forth in Section 6.01(7) or (8), the Trustee shall have received
an Officers' Certificate and an Opinion of Counsel that such Event of
Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
In addition, in the event of an acceleration declaration because an
Event of Default has occurred and is continuing as a result of the acceleration
of any Indebtedness described in clause (5) of Section 6.01, the acceleration
declaration shall be automatically annulled if the holders of any Indebtedness
described in clause (5) have rescinded the declaration of acceleration in
respect of such Indebtedness and if (x) the annulment of the acceleration of the
Notes would not conflict with any judgment or decree of a court of competent
jurisdiction and (y) all existing Events of Default, except nonpayment of
Accreted Value or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived.
SECTION 6.03. Other Remedies.
If a Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, or interest on, the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority
in aggregate principal amount at maturity of the then outstanding Notes (which
may include consents obtained in connection with a tender offer or exchange
offer of Notes) by notice to the Trustee may waive an existing Default or Event
of Default and its consequences, except a Default or Event of Default in the
payment of Accreted Value, Special Interest, if any, or interest or premium on,
any Note as specified in Section 6.01(1) or (2). The Issuer shall deliver to the
Trustee an Officers' Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents.
When a Default or Event of Default is waived, it is cured and ceases.
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SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount at
maturity 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 it. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Holder, or that may involve the Trustee in personal liability;
provided that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
against any loss or expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
No Holder shall have any right to institute any proceeding with
respect to this Indenture or for any remedy thereunder, unless:
(1) such Holder has previously given the Trustee written notice that
an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount at
maturity of the outstanding Notes have requested in writing that the
Trustee pursue the remedy;
(3) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days
after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount at maturity
of the outstanding Notes have not given the Trustee a written direction
inconsistent with such request within such 60-day period.
However, such limitations do not apply to a suit instituted by a Holder of any
Note for enforcement of payment of the Accreted Value of or interest or premium
on such Note on or after the due date therefor (after giving effect to the grace
period specified in Section 6.01(1)).
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of Accreted Value, premium, if any, and interest
on, a Note, on or after the
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respective due dates therefor, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, interest and premium
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
Issuer or any other obligor on the Notes for the whole amount of principal and
accrued interest and fees remaining unpaid, together with Accreted Value,
premium, if any, and interest, if any, on overdue principal and, to the extent
that payment of such interest is lawful, Accreted Value, premium, if any, and
interest on overdue installments of interest, in each case at the rate per annum
borne by the Notes and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and the Holders allowed in any
judicial proceedings relating to the Issuer, their creditors or their property
and shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by each
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 agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of 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
proceeding. The Trustee shall be entitled to participate as a member of any
official committee of creditors in the matters as it deems necessary or
advisable.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for interest, if any, accrued on the Notes,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for interest;
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Third: to Holders for Accreted Value of the Notes due and unpaid,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal; and
Fourth: to the Issuer.
The Trustee, upon prior notice to the Issuer, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. 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 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in aggregate principal amount at maturity of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default 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
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically
set forth herein or in the Trust Indenture Act and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture against
the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates (including Officers'
Certificates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
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(c) Notwithstanding anything to the contrary herein, 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).
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to this Section
7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(g) In the absence of bad faith, negligence or willful misconduct on
the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely conclusively on any resolution, certificate
(including any Officers' Certificate), statement, instrument, opinion
(including any Opinion of Counsel), notice, request, direction, consent,
order, bond, debenture, or other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel, which shall conform to
the provisions of Section 10.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
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(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other
than an agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers under this Indenture.
(e) The Trustee may consult with counsel of its selection and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture whether on its own motion
or at the request, order or direction of any of the Holders pursuant to
the provisions of this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity satisfactory to it against
the costs, expenses and liabilities which may be incurred therein or
thereby.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any
Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, 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, upon reasonable notice to
the Issuer, to examine the books, records, and premises of the Issuer,
personally or by agent or attorney at the sole cost of the Issuer.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as duties.
(j) Except with respect to Section 4.01 and 4.06, the Trustee shall
have no duty to inquire as to the performance of the Issuer with respect
to the covenants contained in Article Four. In addition, the Trustee shall
not be deemed to have knowledge of a Default or Event of Default except
(i) any Default or Event of Default occurring pursuant to Sections 4.01,
6.01(1) or 6.01(2) or (ii) any Default or Event of Default of which the
Trustee shall have received written notification.
(k) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
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SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuer, its
Subsidiaries or its respective Affiliates with the same rights it would have if
it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the SEC for permission to continue as Trustee (if this Indenture has been
qualified under the TIA) or resign. Any Agent may do the same with like rights.
However, the Trustee must comply with 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, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in this Indenture or any
document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee's certificate of authentication. The Trustee makes
no representations with respect to the effectiveness or adequacy of this
Indenture.
SECTION 7.05. Notice of Default.
If a Default or Event of Default occurs and is continuing and the
Trustee receives actual notice of such Default or Event of Default, the Trustee
shall mail to each Holder notice of the uncured Default or Event of Default
within 30 days after such Default or Event of Default occurs. Except in the case
of a Default in payment of Accreted Value, or interest on, any Note, including
an accelerated payment and the failure to make a payment on the Change of
Control Payment Date pursuant to a Change of Control Offer or the Asset Sale
Payment Date pursuant to a Asset Sale Offer, the Trustee may withhold the notice
if and so long as the Board of Directors, the executive committee, or a trust
committee of directors and/or Responsible Officers, of the Trustee in good faith
determines that withholding the notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each August 15, beginning with August 15, 2005
the Trustee shall, to the extent that any of the events described in Trust
Indenture Act Section 313(a) occurred within the previous twelve months, but not
otherwise, mail to each Holder a brief report dated as of such date that
complies with Trust Indenture Act Section 313(a). The Trustee also shall comply
with Trust Indenture Act Sections 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be
mailed by the Trustee to the Issuer and filed by the Trustee with the SEC and
each securities exchange, if any, on which the Notes are listed.
The Issuer shall notify the Trustee if the Notes become listed on
any securities exchange or of any delisting thereof and the Trustee shall comply
with Trust Indenture Act Section 313(d).
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SECTION 7.07. Compensation and Indemnity.
The Issuer shall pay to the Trustee from time to time such
compensation as the Issuer and the Trustee shall from time to time agree in
writing for its services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence, bad faith or willful misconduct. Such
expenses shall include the reasonable fees and expenses of the Trustee's agents
and counsel.
The Issuer shall indemnify each of the Trustee or any predecessor
Trustee and its agents for, and hold them harmless against, any and all loss,
damage, claims including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee), liability or expense incurred by them
except for such actions to the extent caused by any negligence, bad faith or
willful misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable costs and
expenses of defending themselves against or investigating any claim or liability
in connection with the exercise or performance of any of the Trustee's rights,
powers or duties hereunder. The Trustee shall notify the Issuer promptly of any
claim asserted against the Trustee or any of its agents for which it may seek
indemnity. The Issuer shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee and its agents subject to the claim may have separate
counsel and the Issuer shall pay the reasonable fees and expenses of such
counsel; provided, however, that the Issuer shall not be required to pay such
fees and expenses if there is no conflict of interest between the Issuer and the
Trustee and its agents subject to the claim in connection with such defense as
reasonably determined by the Trustee. The Issuer need not pay for any settlement
made without its written consent. The Issuer need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through the Trustee's negligence, bad faith or willful misconduct.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes against all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal and interest on particular Notes.
When the Trustee incurs expenses or renders services after a Default
specified in Section 6.01(7) or (8) occurs, such expenses and the compensation
for such services shall be paid to the extent allowed under any Bankruptcy Law.
Notwithstanding any other provision in this Indenture, the foregoing
provisions of this Section 7.07 shall survive the satisfaction and discharge of
this Indenture or the appointment of a successor Trustee.
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SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuer in
writing. The Holders of a majority in principal amount at maturity of the
outstanding Notes may remove the Trustee by so notifying the Issuer and the
Trustee and may appoint a successor Trustee. The Issuer may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee 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
Issuer shall notify each Holder of such event and shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount at maturity of the Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Issuer.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of at least 10% in principal amount at maturity of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee at the expense of the Issuer.
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.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
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SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation 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
requirement of Trust Indenture Act Sections 310(a)(1), 310(a)(2) and 310(a)(5).
The Trustee shall have a combined capital and surplus of at least $100,000,000
as set forth in its most recent published annual report of condition. The
Trustee shall comply with Trust Indenture Act Section 310(b); provided, however,
that there shall be excluded from the operation of Trust Indenture Act Section
310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Issuer are
outstanding, if the requirements for such exclusion set forth in Trust Indenture
Act Section 310(b)(1) are met. The provisions of Trust Indenture Act Section 310
shall apply to the Issuer and any other obligor of the Notes.
SECTION 7.11. Preferential Collection of Claims Against the Issuer.
The Trustee, in its capacity as Trustee hereunder, shall comply with
Trust Indenture Act Section 311(a), excluding any creditor relationship listed
in Trust Indenture Act Section 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent
indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Issuer's Obligations.
The Issuer may terminate its obligations under the Notes and this
Indenture and this Indenture shall cease to be of further effect, except those
obligations referred to in the penultimate paragraph of this Section 8.01, when:
(a) either:
(1) all the Notes that have been authenticated and delivered,
except lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from the trust, have been delivered to the Trustee for
cancellation, or
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(2) all Notes that have not been delivered to the Trustee for
cancellation otherwise have become due and payable by reason of a mailing
of a notice of redemption or otherwise, will become due and payable within
one year, or may be called for redemption, within one year or have been
called for redemption pursuant to Section 5 or 6 of the Notes and the
Issuer 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 Securities or a combination
of cash in U.S. dollars and non-callable Government Securities, in amounts
as shall 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 Accreted Value, premium and
Special Interest, if any, and accrued interest to the date of maturity or
redemption,
(b) the Issuer has paid or caused to be paid all sums payable by it
under this Indenture, and
(c) the Issuer has delivered irrevocable instructions to the Trustee
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 Issuer must deliver an Officers' Certificate and an
Opinion of Counsel stating that all conditions precedent to satisfaction and
discharge have been complied with.
In the case of clause (2) of this Section 8.01, and subject to the
next sentence and notwithstanding the foregoing paragraph, the Issuer's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 4.03 (as to legal
existence of the Issuer only), 7.07, 8.07 and 8.08 shall survive until the Notes
are no longer outstanding pursuant to the last paragraph of Section 2.08. After
the Notes are no longer outstanding, the Issuer's obligations in Sections 7.07,
8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Issuer's obligations under the
Notes and this Indenture except for those surviving obligations specified above.
SECTION 8.02. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, and at any time, elect to
have either Section 8.03 or 8.04 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.03. Legal Defeasance.
Upon the Issuer's exercise under Section 8.02 of the option
applicable to this Section 8.03, the Issuer shall, subject to the satisfaction
of the conditions set forth in Section 8.05, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the
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date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Issuer shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.06 and the other Sections of this Indenture referred
to in clauses (1) and (2) below, and to have satisfied all of their other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments acknowledging
the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments
in respect of the Accreted Value of, or interest or premium and Special
Interest, if any, on such Notes when such payments are due from the trust
referred to in Section 8.06;
(2) the Issuer's obligations with respect to such Notes under
Article 2 and Section 4.02;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Issuer's obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option
under this Section 8.03 notwithstanding the prior exercise of its option under
Section 8.04.
SECTION 8.04. Covenant Defeasance.
Upon the Issuer's exercise under Section 8.02 of the option
applicable to this Section 8.04, the Issuer shall, subject to the satisfaction
of the conditions set forth in Section 8.05, be released from its obligations
under the covenants contained in Sections 4.03 (other than with respect to the
legal existence of the Issuer), 4.04, 4.07, 4.09 through 4.20, clause (3) of
Section 5.01 with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.05 are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Issuer's exercise under
Section 8.02 of the option applicable to this Section 8.04, subject to the
satisfaction of the conditions set forth in Section 8.04, Sections 6.01(3)
through 6.01(6) and Section 6.01(8) shall not constitute Events of Default.
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SECTION 8.05. Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Sections 8.03 or 8.04:
(1) the Issuer must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as shall
be sufficient, without consideration of any reinvestment of interest, in
the opinion of an investment bank, appraisal firm, or firm of independent
public accountants nationally recognized in the United States, to pay the
Accreted Value of, or interest and premium and Special Interest, if any,
on the outstanding Notes on the Stated Maturity or on the applicable
Redemption Date, as the case may be, and the Issuer must specify whether
the Notes are being defeased to maturity or to a particular Redemption
Date;
(2) in the case of an election under Section 8.03 hereof, the
Issuer must deliver to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that:
(A) the Issuer has received from, or there has been
published by, the U.S. Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has been a
change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and shall 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 Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.04, the Issuer must
deliver to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes shall not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant Defeasance and shall 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit);
(5) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Issuer or
any of the Issuer's Restricted Subsidiar-
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ies that are Significant Subsidiaries is a party or by which the Issuer or
any of the Issuer's Restricted Subsidiaries that are Significant
Subsidiaries is bound;
(6) the Issuer must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Issuer with the intent of
preferring the Holders over the other creditors of the Issuer with the
intent of defeating, hindering, delaying or defrauding creditors of the
Issuer or others; and
(7) the Issuer must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
SECTION 8.06. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.07, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.06, the
"Trustee") pursuant to Article Eight 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 as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium and Special
Interest, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.05 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the
Trustee shall deliver or pay to the Issuer from time to time upon the request of
the Issuer any money or non-callable Government Securities held by it as
provided in Section 8.04 which, in the opinion of a firm of independent public
accountants nationally recognized in the United States expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(1)), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION 8.07. Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, in trust
for the payment of the Accreted Value of, premium or Special Interest, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, premium or Special Interest, if any, or interest has become due and
payable shall be paid to the Issuer on its request or shall be discharged from
such trust; and the Holder of such Note shall thereafter be permitted to look
only to the Issuer for payment thereof, and all liability of the Trustee or such
Paying Agent with respect
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to such trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in the New York Times and The Wall Street
Journal (national edition), 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 notification or publication, any unclaimed balance of such money
then remaining shall be repaid to the Issuer.
SECTION 8.08. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with this Article
VIII, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuer's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with this Article VIII, as the case may be;
provided, however, that, if the Issuer makes any payment of Accreted Value of,
premium or Special Interest, if any, or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
(a) The Issuer and the Trustee, together, may amend or supplement
this Indenture or the Notes without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to provide for the assumption of the Issuer's obligations to
Holders in the case of a merger or consolidation or sale of all or
substantially all of the Issuer's assets, as applicable;
(4) to make any change that would provide any additional rights or
benefits to the Holders or that does not materially adversely affect the
legal rights under this Indenture of any such Holder;
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(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture
Act; or
(6) to evidence and provide for the acceptance of appointment
under this Indenture by a successor Trustee.
provided that the Issuer has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
(a) Subject to Sections 6.07 and 9.03, the Issuer and the Trustee,
together, with the written consent of the Holder or Holders of at least a
majority in aggregate principal amount at maturity of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), may amend or supplement this
Indenture or the Notes, and any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount at maturity of the
then outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes).
Subject to Sections 6.07 and 9.03, the Holder or Holders of a majority in
aggregate principal amount at maturity of the outstanding Notes may waive
compliance with any provision of this Indenture or the Notes without notice to
any other Holders;
(b) Notwithstanding Section 9.02(a), without the consent of each
Holder affected, no amendment, supplement or waiver may (with respect to any
Notes held by a non-consenting Holder):
(1) reduce the principal amount at maturity of Notes whose holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal amount at maturity or Accreted Value of
or change the fixed maturity of any Note or alter the provisions with
respect to the redemption of the Notes (it being understood that this
clause (2) does not apply to Sections 4.09 and 4.13);
(3) reduce the rate of or change the time for payment of interest
on any Note;
(4) waive a Default or Event of Default in the payment of Accreted
Value of, or interest or premium, or Special Interest, if any, on the
Notes (except a rescission of acceleration of the Notes by the holders of
at least a majority in aggregate principal amount of the then outstanding
Notes in accordance with the provisions of this Indenture and a waiver of
the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the
Notes;
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(6) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders to receive payments
of Accreted Value of, or interest or premium or Special Interest, if any,
on the Notes;
(7) waive a redemption payment with respect to any Note (it being
understood that this clause (7) does not apply to a payment required by
Section 4.09 or 4.13);
(8) change the method of calculation of Accreted Value;
(9) in the event that the obligation to make a Change of Control
Offer or an Asset Sale Offer has arisen, amend, change or modify in any
material respect the obligation of the Issuer to make and consummate such
Change of Control Offer or such Asset Sale Offer, as the case may be;
(10) expressly subordinate the Notes in right of payment to any
other Indebtedness of the Issuer; or
(11) make any change in these amendment and waiver provisions.
(c) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver but it shall be sufficient if such consent approves the
substance thereof.
(d) A consent to any amendment, supplement or waiver under this
Indenture by any Holder given in connection with an exchange (in the case of an
exchange offer) or a tender (in the case of a tender offer) of such Holder's
Notes shall not be rendered invalid by such tender or exchange.
(e) After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Issuer shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuer to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.03. Compliance with the Trust Indenture Act.
From the date on which this Indenture is qualified under the Trust
Indenture Act, every amendment, waiver or supplement of this Indenture or the
Notes shall comply with the Trust Indenture Act as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke
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the consent as to his Note or portion of his Note by notice to the Trustee or
the Issuer received before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount at
maturity of Notes have consented (and not theretofore revoked such consent) to
the amendment, supplement or waiver.
The Issuer 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, which record date shall be prior to the first solicitation
of such consent. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 120 days after such record date. The Issuer
shall inform the Trustee in writing of the fixed record date if applicable.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (11) of Section 9.02(b), in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided that any such waiver shall not impair or
affect the right of any Holder to receive payment of Accreted Value of, and
interest on, a Note, on or after the respective due dates therefor, or to bring
suit for the enforcement of any such payment on or after such respective dates
without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note,
the Issuer may require the Holder to deliver it to the Trustee. The Issuer shall
provide the Trustee with an appropriate notation on the Note about the changed
terms and cause the Trustee to return it to the Holder at the Issuer's expense.
Alternatively, if the Issuer or the Trustee so determines, the Issuer in
exchange for the Note shall issue, 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.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall be at the expense of the Issuer.
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ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the Trust Indenture Act, such required or deemed provision shall
control.
SECTION 10.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by nationally recognized overnight courier service, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Issuer:
MAAX Holdings, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇.▇. Childs Associates L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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Each of the Issuer and the Trustee by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Issuer and the Trustee, shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when replied to; when receipt is acknowledged, if telecopied; five
(5) calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee); and next Business Day if
by nationally recognized overnight courier service.
Any notice or communication mailed to a Holder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 10.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to Trust Indenture Act Section
312(b) with other Holders with respect to their rights under this Indenture or
the Notes. The Issuer, the Trustee, the Registrar and any other Person shall
have the protection of Trust Indenture Act Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent to be performed or effected by the Issuer, if
any, provided for in this Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
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(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with or satisfied; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 10.06. Rules by Paying Agent or Registrar.
The Paying Agent or Registrar may make reasonable rules and set
reasonable requirements for their functions.
SECTION 10.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day.
SECTION 10.08. Governing Law.
This Indenture and the Notes will be governed by and construed in
accordance with the laws of the State of New York.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of any of the Issuer or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.10. No Recourse Against Others.
No director, officer, employee, incorporator, member or (except as
prohibited by applicable law) shareholder of the Issuer, as such, shall have any
liability for any obligations of the Issuer 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 by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for issuance of
the Notes.
SECTION 10.11. Successors.
All agreements of the Issuer in this Indenture and the Notes shall
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.
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SECTION 10.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 10.13. Severability.
To the extent permitted by applicable law, in case any one or more
of the provisions in this Indenture or in the Notes shall be held invalid,
illegal or unenforceable, in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the date first written above.
MAAX HOLDINGS, INC., as Issuer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
S-1
▇.▇.▇▇▇▇ TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
S-2
EXHIBIT A
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
MAAX HOLDINGS, INC.
11.25% Senior Discount Notes 2012
CUSIP No.
No. $
THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION
1271 ET SEQ. OF THE INTERNAL REVENUE CODE. FOR EACH $1,000 PRINCIPAL
AMOUNT AT MATURITY OF THIS NOTE, THE ISSUE PRICE IS $644.45. THE ISSUE
DATE OF THIS NOTE IS DECEMBER 10, 2004 AND THE YIELD TO MATURITY IS
11.25%. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT UNDER THIS NOTE CAN BE
PROMPTLY OBTAINED BY SENDING A WRITTEN REQUEST TO THE ISSUER, C/O MAAX
HOLDINGS, INC., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
ATTENTION: SECRETARY.
MAAX HOLDINGS, INC., a Delaware corporation (the "ISSUER"), for value
received promise to pay to ____________ or its registered assigns, the principal
sum of [or such other amount as is provided in a schedule attached hereto](a) on
June 15, 2012.
Interest Payment Dates: June 15 and December 15, commencing June 15, 2009.
Record Dates: June 1 and December 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) This language should be included only if the Note is issued in global
form.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually
or by facsimile by its duly authorized officer.
Dated:
MAAX HOLDINGS, INC., as Issuer
By: _______________________________________
Name:
Title:
A-2
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 11.25% Senior Discount Notes due 2012 described in the
within-mentioned Indenture.
Dated:
▇.▇.▇▇▇▇ TRUST NATIONAL ASSOCIATION,
as Trustee
By: _________________________________________
Authorized Signatory
A-3
(Reverse of Note)
11.25% Senior Discount Notes due 2012
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
SECTION 1. Interest. MAAX Holdings, Inc., a Delaware corporation (the
"ISSUER"), promises to pay the principal amount at maturity of this Note on
December 10, 2012.
The Notes will accrete at the rate of 11.25% per annum, compounded
semiannually on June 15 and December 15 of each year up to and including
December 15, 2008 (the "FULL ACCRETION DATE") from an initial Accreted Value of
$644.45 per $1,000 principal amount at maturity on the Issue Date to $1,000 per
$1,000 principal amount at maturity on the Full Accretion Date, as reflected in
the definition of Accreted Value. Beginning on the Full Accretion Date, cash
interest on the Notes will accrue at the rate of 11.25% per annum and will be
payable semi-annually in arrears on each June 15 and December 15, commencing
June 15, 2009. Special Interest may accrue on the Notes pursuant to the
Registration Rights Agreement. Interest on overdue principal and interest and
Special Interest will accrue at the then applicable interest rate on the Notes.
The Issuer will make each cash interest payment to the holders of record on the
immediately preceding June 1 and December 1. Cash interest will accrue from the
most recent interest payment date to which interest has been paid or, if no
interest has been paid, from December 15, 2008. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Notwithstanding anything to the contrary, the Accreted Value and principal
amount at maturity of any Note shall be reduced by the portion of such Note
redeemed by the Issuer pursuant to Section 7 of this Note.
SECTION 2. Method of Payment. The Issuer shall pay interest on the Notes
to the Persons who are registered Holders at the close of business on June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes shall be issued in denominations of $1,000 principal amount
at maturity and integral multiples thereof. The Issuer shall pay Accreted Value,
premium, if any, Special Interest and interest on the Notes in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts ("U.S. LEGAL TENDER"). Accreted
Value, premium, if any, interest and Special Interest, if any, on the Notes will
be payable at the office or agency of the Issuer maintained for such purpose
except that, at the option of the Issuer, the payment of interest may be made by
check mailed to the Holders at their respective addresses set forth in the
register of Holders; provided that for Holders owning at least $5.0 million in
principal amount at maturity of Notes that have given wire transfer instructions
to the Issuer at least ten Business Days prior to the applicable payment date,
the Issuer shall make all payments of principal, premium and interest by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof. Until
A-4
otherwise designated by the Issuer, the Issuer's office or agency in New York
shall be the office of the Trustee maintained for such purpose.
SECTION 3. Paying Agent and Registrar. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar without notice to
any Holder. Except as provided in the Indenture, the Issuer or any of its
Subsidiaries may act in any such capacity.
SECTION 4. Indenture. The Issuer issued the Notes under an Indenture dated
as of December 10, 2004 ("INDENTURE") by and between the Issuer and the Trustee.
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, as amended (15
U.S. Code Sections 77aaa-77bbbb) (the "TRUST INDENTURE ACT"). The Notes are
subject to all such terms, and Holders are referred to the Indenture and the
Trust Indenture Act for a statement of such terms.
SECTION 5. Optional Redemption.
(a) On or after December 15, 2008 (the "FOURTH ANNIVERSARY"), the Issuer
may on any one or more occasions redeem all or a part of the Notes at the
redemption prices (expressed as percentages of the Accreted Value thereof) set
forth below plus accrued and unpaid interest and Special Interest, if any, on
the Notes redeemed to the applicable Redemption Date, if redeemed during the
twelve-month period beginning December 15 of the years indicated below, subject
to the rights of Holders on the relevant Record Date to receive interest on the
relevant Interest Payment Date:
YEAR PERCENTAGE
---------------------------------------------- -----------
2008.......................................... 105.625%
2009.......................................... 102.813%
2010 and thereafter........................... 100.000%
(b) At any time prior to the Fourth Anniversary, the Issuer may on any one
or more occasions redeem all or a part of the Notes, at a redemption price equal
to 100% of the Accreted Value thereof plus the Applicable Premium, plus accrued
and unpaid Special Interest, if any, on the Notes to be redeemed to the date of
redemption; provided that in the case of any redemption in part, at least 50% of
the aggregate principal amount at maturity of Notes issued under the Indenture
(including any Additional Notes) remains outstanding after giving effect to such
redemption.
SECTION 6. Redemption With Proceeds From Equity Offerings. At any time
prior to December 15, 2007, the Issuer may on any one or more occasions redeem
up to 35% of the aggregate principal amount at maturity of Notes issued under
the Indenture (including any Additional Notes) at a redemption price of 111.25%
of the Accreted Value thereof on the date of redemption, plus accrued and unpaid
Special Interest, if any, on the Notes to be redeemed to the Redemption Date,
with the net cash proceeds of one or more Equity Offerings; provided that: (1)
at least 65% of the aggregate principal amount at maturity of Notes issued under
the Inden-
A-5
ture (including any Additional Notes, but excluding Notes held by the Issuer or
any of its Affiliates) remains outstanding immediately after the occurrence of
such redemption; and (2) the redemption occurs within 90 days of the date of the
closing of such Equity Offering.
SECTION 7. Mandatory Redemption. On December 15, 2009, the Issuer will be
required to redeem a portion of each Note outstanding on such date equal to the
AHYDO Amount on such date. In the event that Special Interest accrues on the
Notes pursuant to the Registration Rights Agreement, on each interest payment
date after December 15, 2009, the Issuer will be required to redeem a portion of
each Note outstanding on such date equal to the AHYDO Amount on such date. The
redemption price for the portion of each Note redeemed under this Section 7 will
be 100% of the Accreted Value of such portion of such Note as of the date of
redemption.
For the avoidance of doubt, an offer to purchase pursuant to Section 9
hereof shall not be deemed a redemption.
SECTION 8. Notice of Redemption. Notice of redemption shall be mailed by
first class mail at least 30 days but not more than 60 days before the
Redemption Date to each Holder to be redeemed at its registered address. Notes
in denominations larger than $1,000 principal amount at maturity may be redeemed
in part. 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 at
maturity thereof to be redeemed. A new Note in principal amount at maturity
equal to the unredeemed portion thereof shall be issued in the name of the
Holder thereof upon cancellation of the original Note. On and after the
Redemption Date interest ceases to accrue on Notes or portions thereof called
for redemption.
SECTION 9. Repurchase at Option of Holder. Upon the occurrence of a Change
of Control, and subject to certain conditions set forth in the Indenture, the
Issuer shall be required to offer to purchase all of the outstanding Notes at a
purchase price equal to 101% of the Accreted Value, plus accrued and unpaid
interest and Special Interest, if any, thereon to the date of repurchase.
The Issuer is, subject to certain conditions and exceptions, obligated to
make an offer to purchase Notes at 100% of their Accreted Value, plus accrued
and unpaid interest, if any, thereon to the date of repurchase, with certain net
cash proceeds of certain sales or other dispositions of assets in accordance
with the Indenture.
SECTION 10. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 principal amount at maturity and
integral multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuer may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Issuer and the Registrar are
not required to transfer or exchange any Note selected for redemption. Also, the
Issuer and the Registrar are not required to transfer or exchange any Notes for
a period of 15 days before a selection of Notes to be redeemed.
A-6
SECTION 11. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
SECTION 12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount at maturity of the Notes then outstanding, and any existing Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount at maturity of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture and the Notes to, among other things, cure any
ambiguity, defect or inconsistency in the Indenture, provide for uncertificated
Notes in addition to certificated Notes, comply with any requirements of the SEC
in connection with the qualification of the Indenture under the Trust Indenture
Act, or make any change that does not materially adversely affect the rights of
any Holder of a Note.
SECTION 13. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount at
maturity of the then outstanding Notes generally may declare all the Notes to be
due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency as set
forth in the Indenture, with respect to the Issuer, all outstanding Notes shall
become due and payable without further action or notice. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount at maturity 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 relating to the payment of Accreted Value or interest
including an accelerated payment or the failure to make a payment on the Change
of Control Payment Date or the Asset Sale Payment Date pursuant to a Asset Sale
Offer or a Default in complying with the provisions of Article Five of the
Indenture) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount at maturity of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default and its consequences under the Indenture
except a continuing Default in the payment of interest on, or the principal of,
or the premium on, the Notes.
SECTION 14. Restrictive Covenants. The Indenture contains certain
covenants that, among other things, limit the ability of the Issuer and its
Restricted Subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries of the Issuer, to consolidate, merge or sell
all or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important qualifications
and exceptions. The Issuer must annually report to the Trustee on compliance
with such limitations and other provisions in the Indenture.
SECTION 15. No Recourse Against Others. No director, officer, employee,
incorporator, member or (except as prohibited by applicable law) shareholder of
the Issuer, as such, shall have any liability for any obligations of the Issuer
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
A-7
Holder by accepting a Note waives and releases all such liability. Such waiver
and release are part of the consideration for issuance of the Notes.
SECTION 16. Trustee Dealings with the Issuer. Subject to certain terms,
the Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Issuer,
their Subsidiaries or their respective Affiliates as if it were not the Trustee.
SECTION 17. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
SECTION 18. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), 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).
SECTION 19. Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. Pursuant to, but subject to the exceptions in, the
Registration Rights Agreement, the Issuer shall be obligated to use its
commercially reasonable efforts to consummate an exchange offer pursuant to
which the Holder of this Note shall have the right to exchange this Note for a
11.25% Senior Discount Note due 2012 of the Issuer which shall have been
registered under the Securities Act, in like Accreted Value and principal amount
at maturity and having terms identical in all material respects to this Note
(except that such Note shall not be entitled to Special Interest and shall not
contain terms with respect to transfer restrictions). The Holders shall be
entitled to receive certain Special Interest in the event such exchange offer is
not consummated or the Notes are not offered for resale and upon certain other
conditions, all pursuant to and in accordance with the terms of the Registration
Rights Agreement.(a)
SECTION 20. CUSIP and ISIN Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Issuer has caused CUSIP and ISIN numbers to be printed on the Notes and the
Trustee may use CUSIP or ISIN numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
SECTION 21. Governing Law. This Note shall be governed by, and construed
in accordance with, the laws of the State of New York.
The Issuer shall furnish to any Holder upon written request and without
charge a copy of the Indenture.
----------
(a) This Section not to appear on Exchange Securities or Additional Notes
unless required by the terms of such Additional Notes.
A-8
ASSIGNMENT FORM
I or we assign and transfer this Note to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________ agent to
transfer this Note on the books of the Issuer. The agent may substitute another
to act for him.
Dated: _________________ Signed: __________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ___________________________________________________________
Participant in a recognized Signature Guarantee Medal-
lion Program (or other signature guarantor program reas-
onably acceptable to the Trustee)
In connection with any transfer of this Note occurring prior to the date
which is the date following the second anniversary of the original issuance of
this Note, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and is
making the transfer pursuant to one of the following:
[Check One]
(1) ___ to the Issuer or a subsidiary thereof; or
(2) ___ to a person who the transferor reasonably believes is a "qualified
institutional buyer" pursuant to and in compliance with Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act");
or
(3) ___ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
A-9
(4) ___ outside the United States to a non-"U.S. person" as defined in Rule
902 of Regulation S under the Securities Act in compliance with Rule
904 of Regulation S under the Securities Act; or
(5) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act or pursuant to another exemption available
under the Securities Act; or
(6) ___ pursuant to an effective registration statement under the Securities
Act.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Issuer as defined in Rule 144
under the Securities Act (an "Affiliate"):
[ ]The transferee is an Affiliate of the Issuer.
Unless one of the foregoing items (1) through (6) is checked, the Trustee
will refuse to register any of the Notes evidenced by this certificate in the
name of any person other than the registered Holder thereof; provided, however,
that if item (3), (4) or (5) is checked, the Issuer or the Trustee may require,
prior to registering any such transfer of the Notes, in their sole discretion,
such written legal opinions, certifications (including an investment letter in
the case of box (3) or (4)) and other information as the Trustee or the Issuer
has reasonably requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If none of the foregoing items (1) through (6) are 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 Section 2.16 of the Indenture
shall have been satisfied.
Dated:___________________ Signed: __________________________________
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee:____________________________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
A-10
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this 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 "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
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 Issuer as the
undersigned 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 the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:________________________ _______________________________________
NOTICE: To be executed by an executive
officer
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.09 or Section 4.13 of the Indenture, check the appropriate box:
Section 4.09 [ ] Section 4.13 [ ]
If you want to elect to have only part of this Note purchased by the
Issuer pursuant to Section 4.09 or Section 4.13 of the Indenture, state the
amount (in denominations of $1,000 principal amount at maturity and integral
multiples thereof): $___________
Dated: ______________________ Signed: _________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
A-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE (a)
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Physical Note, or exchanges of a part of another
Global Note or Physical Note for an interest in this Global Note, have been
made:
Principal amount at
Amount of decrease in Amount of increase in maturity of Signature of
Principal amount at Principal amount at this Global Note authorized officer of
maturity of maturity of following such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
--------------------- --------------------- --------------------- ----------------------- ---------------------
----------
(a) This schedule should be included only if the Note is issued in global form
A-13
EXHIBIT B
FORM OF LEGENDS
Each Global Note and Physical Note that constitutes a Restricted Security
shall bear the following legend (the "Private Placement Legend") on the face
thereof until after the second anniversary of the Issue Date, unless otherwise
agreed by the Issuer and the Holder thereof or if such legend is no longer
required by Section 2.16(g) of the Indenture:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
Each Global Note authenticated and delivered hereunder shall also bear the
following legend:
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 OR A SUCCESSOR 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 COR-
B-1
PORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
Each Temporary Regulation S Global Note shall also bear the following
legend:
"THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST
HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE
INDENTURE REFERRED TO BELOW.
"NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE
INDENTURE."
Each Note sold to a person resident in a province or territory of Canada
and each Note issued as an Exchange Security to a person resident in a province
or territory of Canada shall also bear the following legend, or the related
confirmation or other ownership statement in the event that a book-entry system
is used shall bear the following legend or restriction, in either case until
such legend or restriction shall no longer be necessary or advisable because
such Note is no longer subject to the restrictions on transfer contained
therein:
"UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF
THIS SECURITY MUST NOT TRADE THE SECURITY IN OR TO A PERSON IN ANY
PROVINCE OR TERRITORY OF CANADA BEFORE THE DATE THAT IS 4 MONTHS AND A DAY
AFTER THE LATER OF (i) [INSERT THE DISTRIBUTION DATE], AND (ii) THE DATE
THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY."
B-2
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
[ ], [ ]
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Ladies and Gentlemen:
In connection with our proposed purchase of 11.25% Senior Discount Notes
due 2012 (the "NOTES") of MAAX HOLDINGS, INC., a Delaware Corporation (the
"ISSUER"), we confirm that:
1. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture relating to
the Notes (the "Indenture") and the undersigned agrees to be bound by, and
not to resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act"), and all applicable state securities laws.
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered,
sold, pledged or otherwise transferred 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, offer, pledge or
otherwise transfer any Notes, we will do so only (i) to the Issuer or any of
its subsidiaries, (ii) inside the United States in a transaction meeting the
requirements of Rule 144A under the Securities Act to a person who we
reasonably believe to be a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that is purchasing at
least $250,000 of Notes for its own account or for the account of an
institutional accredited investor and who, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to the Trustee (as
defined in the Indenture) a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Notes (the
form of which letter can be obtained from the Trustee), (iv) outside the
United States to a person that is not a U.S. person (as defined in Rule 902
under the Securities Act) in accordance with Regulation S promulgated under
the Securities Act, (v) pursuant to the exemption from registration provided
by Rule 144 under the Securities Act (if available) or another available
exemption under the Securities
C-1
Act or (vi) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing
any of the Notes from us a notice advising such purchaser that resales of
the Notes are restricted as stated herein.
3. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section 3
of the Employee Retirement Income Security Act of 1974, as amended) or plan
(as defined in Section 4975 of the Internal Revenue Code of 1986, as
amended), except as permitted in the section entitled "Notice to Investors"
of the Offering Memorandum.
4. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the Trustee and the Issuer such certification, legal
opinions and other information as the Trustee and the Issuer 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.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be.
6. We are acquiring the Notes purchased by us for our account or for one
or more accounts (each of which is an institutional "accredited investor") as
to each of which we exercise sole investment discretion.
C-2
You, as Trustee, the Issuer, counsel for the Issuer and others are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ________________________________________
Name:
Title:
C-3
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ], [ ]
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: MAAX Corporation (the "Issuer")
11.25% Senior Discount Notes due 2012 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal amount at
maturity 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 person in the United States;
(2) either (a) at the time the buy offer was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States, or (b)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither we nor any person acting on our behalf
knows that the transaction has been prearranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions applicable
to the Notes.
You, as Trustee, the Issuer, counsel for the Issuer and others 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.
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Very truly yours,
[Name of Transferor]
By: ________________________________________
Authorized Signatory
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EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF TEMPORARY REGULATION S GLOBAL NOTE
______________,_________
U.S. Bank Trust National Association
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Attention: Corporate Trust Services
Re: MAAX Corporation (the "Issuer")
11.25% Senior Discount Notes due 2012 (the "Notes")
Dear Sirs:
This letter relates to U.S. $ ______________ principal amount at maturity
of Notes represented by a certificate (the "LEGENDED CERTIFICATE") which bears a
legend outlining restrictions upon transfer of such Legended Certificate.
Pursuant to Section 2.16(c) of the Indenture (the "INDENTURE") dated as of
December 10, 2004 relating to the Notes, we hereby certify that we are (or we
will hold such securities on behalf of) a person outside the United States (or
to the Initial Purchaser (as defined in the Indenture)) to whom the Notes could
be transferred in accordance with Rule 904 of Regulation S promulgated under the
U.S. Securities Act of 1933, as amended.
You, as Trustee, the Issuer, counsel for the Issuer and others 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 letter have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By: ________________________________________
Authorized Signature
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