EXECUTION COPY
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Exhibit 4.1
BUILDERS FIRSTSOURCE, INC.
AND EACH OF THE GUARANTORS PARTY HERETO
SECOND PRIORITY SENIOR SECURED FLOATING RATE NOTES DUE 2012
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INDENTURE
Dated as of February 11, 2005
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Wilmington Trust Company
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
--------------- ------------------
310(a)(1) .................................................. 7.10
(a)(2) .................................................. 7.10
(a)(3) .................................................. N.A.
(a)(4) .................................................. N.A.
(a)(5) .................................................. 7.10
(b) ..................................................... 7.10
(c) ..................................................... N.A.
311(a) ..................................................... 7.11
(b) ..................................................... 7.11
(c) ..................................................... N.A.
312(a) ..................................................... 2.05
(b) ..................................................... 13.03
(c) ..................................................... 13.03
313(a) ..................................................... 7.06
(b)(1) .................................................. 10.04
(b)(2) .................................................. 7.06; 7.07
(c) ..................................................... 7.06; 13.02
(d) ..................................................... 7.06
314(a) ..................................................... 4.03; 13.02; 13.05
(b) ..................................................... N.A.
(c)(1) .................................................. 13.04
(c)(2) .................................................. 13.04
(c)(3) .................................................. N.A.
(d) ..................................................... 10.04
(e) ..................................................... 13.05
(f) ..................................................... N.A.
315(a) ..................................................... 7.01
(b) ..................................................... 7.05; 13.02
(c) ..................................................... 7.01
(d) ..................................................... 7.01
(e) ..................................................... 6.11
316(a) (last sentence) ..................................... 2.09
(a)(1)(A) ............................................... 6.05
(a)(1)(B) ............................................... 6.04
(a)(2) .................................................. N.A.
(b) ..................................................... 6.07
(c) ..................................................... 2.12
317(a)(1) .................................................. 6.08
(a)(2) .................................................. 6.09
(b) ..................................................... 2.04
318(a) ..................................................... 13.01
(b) ..................................................... N.A.
(c) ..................................................... 13.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions...................................................... 1
Section 1.02 Other Definitions................................................ 30
Section 1.03 Incorporation by Reference of Trust Indenture Act................ 30
Section 1.04 Rules of Construction............................................ 31
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.................................................. 31
Section 2.02 Execution and Authentication..................................... 32
Section 2.03 Registrar and Paying Agent....................................... 33
Section 2.04 Paying Agent to Hold Money in Trust.............................. 33
Section 2.05 Holder Lists..................................................... 33
Section 2.06 Transfer and Exchange............................................ 34
Section 2.07 Replacement Notes................................................ 46
Section 2.08 Outstanding Notes................................................ 46
Section 2.09 Treasury Notes................................................... 46
Section 2.10 Temporary Notes.................................................. 47
Section 2.11 Cancellation..................................................... 47
Section 2.12 Defaulted Interest............................................... 47
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee............................................... 47
Section 3.02 Selection of Notes to Be Redeemed or Purchased................... 48
Section 3.03 Notice of Redemption............................................. 48
Section 3.04 Effect of Notice of Redemption................................... 49
Section 3.05 Deposit of Redemption or Purchase Price.......................... 49
Section 3.06 Notes Redeemed or Purchased in Part.............................. 49
Section 3.07 Optional Redemption.............................................. 50
Section 3.08 Mandatory Redemption............................................. 50
Section 3.09 Offer to Purchase by Application of Excess Proceeds.............. 51
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes................................................. 52
Section 4.02 Maintenance of Office or Agency.................................. 53
Section 4.03 Reports.......................................................... 53
Section 4.04 Compliance Certificate........................................... 54
Section 4.05 Taxes............................................................ 54
Section 4.06 Stay, Extension and Usury Laws................................... 55
Section 4.07 Restricted Payments.............................................. 55
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries... 58
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock....... 59
Section 4.10 Asset Sales...................................................... 63
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Section 4.11 Transactions with Affiliates..................................... 64
Section 4.12 Liens............................................................ 65
Section 4.13 Business Activities.............................................. 65
Section 4.14 Corporate Existence.............................................. 66
Section 4.15 Offer to Repurchase Upon Change of Control....................... 66
Section 4.16 Limitation on Issuances and Sales of Equity Interests in
Wholly-Owned Subsidiaries..................................... 67
Section 4.17 Limitation on Issuances of Guarantees of Indebtedness............ 68
Section 4.18 Payments for Consent............................................. 68
Section 4.19 Additional Note Guarantees....................................... 69
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.......... 69
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets......................... 69
Section 5.02 Successor Corporation Substituted................................ 70
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default................................................ 71
Section 6.02 Acceleration..................................................... 73
Section 6.03 Other Remedies................................................... 73
Section 6.04 Waiver of Past Defaults.......................................... 73
Section 6.05 Control by Majority.............................................. 73
Section 6.06 Limitation on Suits.............................................. 74
Section 6.07 Rights of Holders of Notes to Receive Payment.................... 74
Section 6.08 Collection Suit by Trustee....................................... 74
Section 6.09 Trustee May File Proofs of Claim................................. 74
Section 6.10 Priorities....................................................... 75
Section 6.11 Undertaking for Costs............................................ 75
ARTICLE 7
TRUSTEE AND COLLATERAL TRUSTEE
Section 7.01 Duties of Trustee................................................ 76
Section 7.02 Rights of Trustee................................................ 77
Section 7.03 Individual Rights of Trustee..................................... 77
Section 7.04 Trustee's Disclaimer............................................. 77
Section 7.05 Notice of Defaults............................................... 77
Section 7.06 Reports by Trustee to Holders of the Notes....................... 78
Section 7.07 Compensation and Indemnity....................................... 78
Section 7.08 Replacement of Trustee........................................... 79
Section 7.09 Successor Trustee by Merger, etc................................. 80
Section 7.10 Eligibility; Disqualification.................................... 80
Section 7.11 Preferential Collection of Claims Against Company................ 80
Section 7.12 Appointment...................................................... 80
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance......... 80
Section 8.02 Legal Defeasance and Discharge................................... 80
Section 8.03 Covenant Defeasance.............................................. 81
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Section 8.04 Conditions to Legal or Covenant Defeasance....................... 81
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions................................ 83
Section 8.06 Repayment to Company............................................. 83
Section 8.07 Reinstatement.................................................... 83
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.............................. 84
Section 9.02 With Consent of Holders of Notes................................. 85
Section 9.03 Compliance with Trust Indenture Act.............................. 86
Section 9.04 Revocation and Effect of Consents................................ 86
Section 9.05 Notation on or Exchange of Notes................................. 86
Section 9.06 Trustee to Sign Amendments, etc.................................. 87
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01 Equal and Ratable Sharing of Collateral by Holders of
Parity Lien Debt.............................................. 87
Section 10.02 Ranking of Parity Liens.......................................... 87
Section 10.03 Relative Rights.................................................. 88
Section 10.04 Compliance with Trust Indenture Act.............................. 88
Section 10.05 Further Assurances; Insurance.................................... 89
Section 10.06 Release of Liens in Respect of Notes............................. 90
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee........................................................ 90
Section 11.02 Limitation on Guarantor Liability................................ 91
Section 11.03 Execution and Delivery of Note Guarantee......................... 91
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms............... 92
Section 11.05 Releases......................................................... 92
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge....................................... 93
Section 12.02 Application of Trust Money....................................... 94
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls..................................... 94
Section 13.02 Notices.......................................................... 95
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.... 96
Section 13.04 Certificate and Opinion as to Conditions Precedent............... 96
Section 13.05 Statements Required in Certificate or Opinion.................... 96
Section 13.06 Rules by Trustee and Agents...................................... 96
Section 13.07 No Personal Liability of Directors, Officers,
Employees and Stockholders.................................... 96
Section 13.08 Governing Law.................................................... 97
Section 13.09 No Adverse Interpretation of Other Agreements.................... 97
Section 13.10 Successors....................................................... 97
Section 13.11 Severability..................................................... 97
Section 13.12 Counterpart Originals............................................ 97
Section 13.13 Table of Contents, Headings, etc................................. 97
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EXHIBITS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE dated as of February 11, 2005 among Builders FirstSource, Inc., a
Delaware corporation, the Guarantors (as defined) and Wilmington Trust Company,
a Delaware banking corporation, as trustee.
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as
defined) of the Second Priority Senior Secured Floating Rate Notes due 2012 (the
"Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of Exhibit
A1 hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"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 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.
"Additional Notes" means additional Notes (other than the Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as
part of the same series as the Initial Notes.
"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; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Premium" means, with respect to any Note on any redemption
date, the greater of:
(1) 1.0% of the principal amount of the Note; or
(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of the Note at February 15, 2007 (such redemption
price being set forth in the table appearing in Section 3.07 hereof)
plus (ii) all required interest payments due on the Note through
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February 15, 2007, such interest payments to be determined in
accordance with this Indenture and the Note assuming that the LIBOR
Rate in effect on the date of such redemption notice would be the
applicable LIBOR Rate in effect through February 15, 2007 (excluding
accrued but unpaid interest to the redemption date), computed using a
discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over
(b) the principal amount of the Note, if greater.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights; provided that the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by Section 4.15 hereof
and/or Section 5.01 hereof and not by Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.
Notwithstanding the preceding, none of the following items will be deemed
to be an Asset Sale:
(1) any single transaction or series of related transactions that
involves assets having an estimated good faith value of, or in the case of
a lease, aggregate lease payments of, less than $3.0 million;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the Company;
(4) the sale or lease of products, services or accounts receivable 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 4.07 hereof or
a Permitted Investment;
(7) the sale or transfer of (or the sale or transfer of interests in)
the Company's or any of its Restricted Subsidiaries' accounts receivable
and related assets pursuant to a receivables facility in a transaction
permitted hereunder; and
(8) the deemed sale, transfer or sale-leaseback of the Company's
facility located in Port St. Lucie, Florida, in connection with the
construction and subsequent lease of such facility.
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"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP; provided,
however, that if such sale and leaseback transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of "Capital Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"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" will 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:
(1) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on behalf of
such board;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership;
(3) with respect to a limited liability company, the managing member
or members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Borrowing Base" means the sum of: (1) 80% of the book value of accounts
receivable, and (2) 65% of the book value of inventory, in each case of the
Company and its Restricted Subsidiaries on a consolidated basis in accordance
with GAAP as of the end of the Company's most recently ended fiscal quarter for
which financial statements are available.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"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 prepared in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
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(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:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United
States government (provided that the full faith and credit of the United
States is pledged in support of those securities) having maturities of not
more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any lender party to the Credit Agreement or
with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial paper having one of the two highest ratings obtainable
from Moody's or S&P and, in each case, maturing within six months after the
date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1) through (5) of this
definition.
"Casualty Event" means any taking under power of eminent domain or similar
proceeding and any insured loss, in each case relating to property or other
assets that constituted Collateral and resulting in Net Proceeds of at least
$1.0 million.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Company 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 a Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company;
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(3) the consummation of any transaction (including, without
limitation, any merger or consolidation), the result of which is that any
"person" (as defined above), other than the Principal and their Related
Parties, becomes the Beneficial Owner, directly or indirectly, of more than
50% of the Voting Stock of the Company, measured by voting power rather
than number of shares; or
(4) after an Initial Public Offering, during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election to such Board of Directors or whose nomination for
election was approved by a vote of a majority of the members of the Board
of Directors of the Company, which members comprising such majority are
then still in office and were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company, as applicable.
"Class" means (1) in the case of Parity Lien Debt, every Series of Parity
Lien Debt, taken together, and (2) in the case of Priority Lien Debt, every
Series of Priority Lien Debt, taken together.
"Clearstream" means Clearstream Banking, S.A.
"Collateral" means all properties and assets at any time owned or acquired
by the Company or any of the other Pledgors, except:
(1) Excluded Assets;
(2) any properties and assets in which the Collateral Trustee is
required to release its Liens pursuant to the Collateral Trust Agreement;
and
(3) any properties and assets that no longer secure the Notes or any
Obligations in respect thereof pursuant to the Collateral Trust Agreement,
provided that, in the case of clauses (2) and (3), if such Liens are
required to be released as a result of the sale, transfer or other disposition
of any properties or assets of the Company or any other Pledgor, such assets or
properties will cease to be excluded from the Collateral if the Company or any
other Pledgor thereafter acquires or reacquires such assets or properties.
"Collateral Trust Agreement" means the collateral trust agreement, dated as
of the date of this Indenture, among the Collateral Trustee, the Administrative
Agent under the Credit Agreement and the Trustee, and substantially in the form
attached as Exhibit H hereto as such agreement may be amended, modified or
supplemented from time to time.
"Collateral Trustee" means each of UBS AG, Stamford Branch, in its capacity
as collateral trustee for the benefit of the holders of the Priority Lien
Obligations and UBS AG, Stamford Branch in its capacity as collateral trustee
for the holders of the Parity Lien Obligations, unless the context specifies
only one of the foregoing capacities, together with successors in such
capacities; provided, however, that the Collateral Trustee may act as the
collateral trustee, collateral agent or any similar title that the Collateral
Trustee deems necessary or convenient for the purpose of perfecting the Priority
Liens and the Parity Liens in the Collateral.
"Common Collateral" means Collateral that secures each Series of Secured
Debt of the same Class.
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"Company" means Builders FirstSource, Inc. and any and all successors
thereto.
"Consolidated Cash Flow" means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Restricted Subsidiaries in connection
with an Asset Sale, to the extent such losses were deducted in computing
such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income;
plus
(3) the Fixed Charges of such Person and its Restricted Subsidiaries
for such period, to the extent that such Fixed Charges were deducted in
computing such Consolidated Net Income; plus
(4) all non-recurring gains and losses and all restructuring charges;
plus
(5) depreciation, amortization (including amortization of intangibles
but excluding amortization of prepaid cash expenses that were paid in a
prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income; minus
(6) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of
business;
in each case, on a consolidated basis and determined in accordance with
GAAP.
"Consolidated Net Income" means, with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:
(1) the Net Income (or loss) of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of accounting will
be included only to the extent of the amount of dividends or similar
distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of
the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders;
(3) the cumulative effect of a change in accounting principles will be
excluded;
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(4) the fees, costs, and expenses paid or payable during such period
in cash by the Company or any of its Subsidiaries in connection with the
Transactions (including, without limitation, payments to option holders in
connection with the Transactions) will be excluded;
(5) the non-cash interest expense in respect of Attributable Debt
related to the deemed sale, transfer or sale-leaseback of the Company's
facility located in Port St. Lucie, Florida, in connection with the
construction and subsequent lease of such facility will be excluded; and
(6) notwithstanding clause (1) above, the Net Income of any
Unrestricted Subsidiary will be excluded, whether or not distributed to the
specified Person or one of its Subsidiaries.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Agreement" means that certain Credit Agreement, to be dated as of
the date of this Indenture, by and among the Company, the Restricted
Subsidiaries named therein, UBS AG, Stamford Branch, as administrative agent and
collateral trustee and the lenders who are signatories thereto, providing for up
to $350.0 million of revolving credit, term loan and letters of credit
borrowings, 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 or
after 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, whether in one or more agreements.
"Credit Agreement Agent" means, at any time, the Person serving at such
time as the "Agent" or "Administrative Agent" under the Credit Agreement or any
other representative then most recently designated in accordance with the
applicable provisions of the Credit Agreement, together with its successors in
such capacity.
"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 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 (whether upon or after 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, whether in one or more
agreements.
"Custodian" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"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.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A1 hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and any and
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all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"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
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the
United States or the District of Columbia or that guarantees or otherwise
provides direct credit support for any Indebtedness of the Company.
"equally and ratably" means, in reference to sharing of Liens or proceeds
thereof as between holders of Secured Obligations within the same Class, that
such Liens or proceeds:
(1) will be allocated and distributed first to the Secured Debt
Representative for each outstanding Series of Secured Debt within that
Class, for the account of the holders of such Series of Secured Debt,
ratably in proportion to the principal of, and interest and premium (if
any), reimbursement obligations (contingent or otherwise) with respect to
letters of credit, if any, outstanding (whether or not drawings have been
made under such letters of credit) and Hedging Obligations on each
outstanding Series of Secured Debt within that Class when the allocation or
distribution is made, and thereafter
(2) will be allocated and distributed (if any remain after payment in
full of all of the principal of, and interest and premium (if any) and
reimbursement obligations (contingent or otherwise) with respect to letters
of credit, if any, outstanding (whether or not drawings have been made on
such letters of credit) on all outstanding Secured Obligations within that
Class) to the Secured Debt Representative for each outstanding Series of
Secured Obligations within that Class, for the account of the holders of
any remaining Secured Obligations within that Class, ratably in proportion
to the aggregate unpaid amount of such remaining Secured Obligations within
that Class due and demanded (with written notice to the applicable Secured
Debt Representative and the Collateral Trustee) prior to the date such
distribution is made.
"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 an offer and sale of Capital Stock (other than
Disqualified Stock) of the Company.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the Euroclear
system.
8
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Excluded Assets" means each of the following:
(1) any lease, license, contract, property right or agreement to which
the Company or any other Pledgor is a party or any of its rights or
interests thereunder if and only for so long as the grant of a Lien under
the Security Documents will constitute or result in a breach, termination
or default under any such lease, license, contract, property right or
agreement or would result in a violation of applicable law (other than to
the extent that any such term would be rendered ineffective pursuant to
Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any
relevant jurisdiction or any other applicable law or principles of equity);
provided that such lease, license, contract, property right or agreement
will be an Excluded Asset only to the extent and for so long as the
consequences specified above will result and will cease to be an Excluded
Asset and will become subject to the Lien granted under the Security
Documents, immediately and automatically, at such time as such consequences
will no longer result;
(2) real property owned by the Company or any other Pledgor that has a
Fair Market Value not exceeding $3.0 million determined on the date of this
Indenture or the date such property is acquired, as applicable, or any real
property subject to an existing mortgage or leased by the Company or any
other Pledgor;
(3) all "securities" of any of the Company's "affiliates" (as the
terms "securities" and "affiliates" are used in Rule 3-16 of Regulation S-X
under the Securities Act);
(4) any other property or asset in which a Lien cannot be perfected by
the filing of a financing statement under the Uniform Commercial Code of
the relevant jurisdiction, so long as the estimated good faith market value
of such property and asset does not exceed $1.0 million individually or
$10.0 million in the aggregate for all property and assets excluded under
this clause (4);
(5) equipment that is subject to a Lien securing a purchase money
obligation or Capital Lease Obligation incurred in accordance with Section
4.09 hereof if the contract or other agreement in which such Lien is
granted (or the documentation providing for such purchase money obligation
or Capital Lease Obligation) validly prohibits the creation of any other
Lien on such equipment;
(6) Equity Interests of a Subsidiary that is organized under the laws
of a jurisdiction other than the United States or any state thereof or the
District of Columbia constituting 34% of the total voting power of all
outstanding voting stock of such Subsidiary, provided that any such Equity
Interests constituting "stock entitled to vote" within the meaning of
Treasury Regulation Section 1.956 2(c)(2) shall be treated as voting stock
for purposes of this paragraph; and
9
(7) deposit accounts with, in the aggregate, up to $10.0 million in
cash and Cash Equivalents.
"Existing Disqualified Stock" means any Disqualified Stock in existence on
the date of this Indenture.
"Existing Indebtedness" means Indebtedness of the Company 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 Company (unless otherwise provided in this Indenture).
"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 of its Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings and issuances of
letters of credit) 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 (the "Calculation Date"),
then the Fixed Charge Coverage Ratio will 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 full fiscal 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 of
its Restricted Subsidiaries, including through mergers or consolidations,
or any Person or any of its Restricted Subsidiaries acquired by the
specified Person or any of its Restricted Subsidiaries, and including any
related financing transactions and including increases in ownership of
Restricted Subsidiaries, during the four full fiscal quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date will be given pro forma effect (in accordance with
Regulation S-X under the Securities Act) as if they had occurred on the
first day of the four full fiscal quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded;
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date,
will be excluded, but only to the extent that the obligations giving rise
to such Fixed Charges will not be obligations of the specified Person or
any of its Restricted Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation Date
will be deemed to have been a Restricted Subsidiary at all times during
such four full fiscal quarter period;
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(5) any Person that is not a Restricted Subsidiary on the Calculation
Date will be deemed not to have been a Restricted Subsidiary at any time
during such four full fiscal quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will 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).
"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 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, excluding the amortization of
deferred financing costs; plus
(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest 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 of its Restricted Subsidiaries, other than dividends on Equity
Interests payable solely in Equity Interests of the Company (other than
Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, 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, determined on a consolidated basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"Global Notes" means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes deposited with or on behalf of
and registered in the name of the Depository or its nominee, substantially in
the form of Exhibit A1 hereto and that bears the Global Note Legend and that has
the "Schedule of Exchanges of Interests in the Global Note" attached thereto,
issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or
2.06(f) hereof.
11
"Government Securities" means securities that are:
(1) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged, or
(2) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the
issuers thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such Government Securities or a specific payment of principal of or
interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Securities or the specific payment
of principal of or interest on the Government Securities evidenced by such
depository receipt.
"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
conditions or otherwise).
"Guarantors" means each of:
(1) Builders FirstSource - Northeast Group, LLC; Builders FirstSource
- Texas Genpar, LLC; Builders FirstSource - MBS, LLC; Builders FirstSource
- Texas Group, L.P.; BFS Texas, LLC; Builders FirstSource - South Texas,
L.P.; Builders FirstSource - Texas Installed Sales, L.P.; BFS IP, LLC;
Builders FirstSource - Intellectual Property, L.P.; Builders FirstSource
Holdings, Inc.; Builders FirstSource - Dallas, LLC; Builders FirstSource -
Florida, LLC; Builders FirstSource - Florida Design Center, LLC; Builders
FirstSource - Ohio Valley, LLC; BFS, LLC, Builders FirstSource - Atlantic
Group, LLC; Builders FirstSource of Nashville, Inc.; Builders FirstSource -
Southeast Group, LLC; Builders FirstSource - SNC, LLC; CCWP, Inc.; Builders
FirstSource - Raleigh, LLC; Builders FirstSource - Colorado Group, LLC;
Builders FirstSource Colorado, LLC; Builders FirstSource Financing, Inc.;
and
(2) any other Subsidiary of the Company that executes a Note Guarantee
in accordance with the provisions of this Indenture,
and their respective successors and assigns, in each case, until the Note
Guarantee of such Person has been released in accordance with the provisions of
this Indenture.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or
from floating to fixed), interest rate cap agreements and interest rate
collar agreements;
12
(2) other agreements or arrangements designed to manage interest rates
or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange rates or commodity prices,
in each case, in reasonable relation to the business of the Company and the
Restricted Subsidiaries, and not for speculative purposes.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of Exhibit
A1 hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
"Immaterial Subsidiary" means, as of any date, any Restricted Subsidiary
whose total assets, as of that date, are less than $500,000 and whose total
revenues for the most recent twelve-month period do not exceed $500,000;
provided that a Restricted Subsidiary will not be considered to be an Immaterial
Subsidiary if it, directly or indirectly, guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(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 banker's acceptances and letters of credit;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price
of any property or services due more than twelve months after such property
is acquired or such services are completed; 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) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
13
"Initial Notes" means the first $275 million aggregate principal amount of
Notes issued under this Indenture on the date hereof.
"Initial Public Offering" means an offer and sale of Capital Stock (other
than Disqualified Stock) of the Company pursuant to a registration statement on
Form S-1 that has been declared effective by the SEC pursuant to the Securities
Act.
"Initial Purchasers" means UBS Securities LLC and Deutsche Bank Securities
Inc.
"insolvency or liquidation proceeding" means:
(1) any case commenced by or against the Company or any other Pledgor
under Title 11, U.S. Code or any similar federal or state law for the
relief of debtors, any other proceeding for the reorganization,
recapitalization or adjustment or marshalling of the assets or liabilities
of the Company or any other Pledgor, any receivership or assignment for the
benefit of creditors relating to the Company or any other Pledgor or any
similar case or proceeding relative to the Company or any other Pledgor or
its creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities
or other winding up of or relating to the Company or any other Pledgor, in
each case whether or not voluntary and whether or not involving bankruptcy
or insolvency; or
(3) any other proceeding of any type or nature in which substantially
all claims of creditors of the Company or any other Pledgor are determined
and any payment or distribution is or may be made on account of such
claims.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"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 Guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), 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 Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company will be deemed to have made an Investment
on the date of any such sale or disposition equal to the Fair Market Value of
the Company's Investments in such Subsidiary that were not sold or disposed of
in an amount determined as provided in the final paragraph of Section 4.07
hereof. The acquisition by the Company or any Restricted Subsidiary of the
Company of a Person that holds an Investment in a third Person will be deemed to
be an Investment by the Company 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 final paragraph of the Section 4.07 hereof. Except as otherwise provided in
this Indenture, the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes in value.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are required by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
14
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"LIBOR Rate" means, for each quarterly period during which any Note is
outstanding subsequent to the initial quarterly period, the rate determined by
the Company (notice of such rate to be sent to the trustee by the Company on the
date of determination thereof) equal to the applicable British Bankers'
Association LIBOR rate for deposits in U.S. dollars for a period of three months
as reported by any generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to the first day of such
quarterly period; provided that, if no such British Bankers' Association LIBOR
rate is available to the Company, the LIBOR Rate for the relevant quarterly
period shall instead be the rate at which UBS Securities LLC or one of its
affiliate banks offers to place deposits in U.S. dollars with first-class banks
in the London interbank market for a period of three months at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
quarterly period, in amounts equal to $1.0 million. Notwithstanding the
foregoing, the LIBOR Rate for the initial quarterly period shall be 2.77%.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Lien Sharing and Priority Confirmation" means:
(1) as to any Series of Parity Lien Debt, the written agreement of the
holders of such Series of Parity Lien Debt or their representative, as set
forth in this Indenture, credit agreement or other agreement governing such
Series of Parity Lien Debt, for the enforceable benefit of all holders of
each existing and future Series of Priority Lien Debt, each existing and
future Priority Lien Representative and each existing and future holder of
Permitted Prior Liens:
(a) that all Parity Lien Obligations will be and are secured
equally and ratably by all Parity Liens at any time granted by the
Company or any other Pledgor to secure any Obligations in respect of
such Series of Parity Lien Debt, upon property constituting Common
Collateral for such Series of Parity Lien Debt and each existing and
future Series of Parity Lien Debt, and that all such Parity Liens will
be enforceable by the Collateral Trustee for the benefit of all
holders of Parity Lien Obligations equally and ratably;
(b) that the holders of Obligations in respect of such Series of
Parity Lien Debt are bound by the provisions of the Collateral Trust
Agreement, including the provisions relating to the ranking of Parity
Liens and the order of application of proceeds from the enforcement of
Parity Liens; and
(c) consenting to and directing the Collateral Trustee to perform
its obligations under the Collateral Trust Agreement and the Security
Documents; and
15
(2) as to any Series of Priority Lien Debt, the written agreement of
the holders of such Series of Priority Lien Debt or their representative,
as set forth in the credit agreement or other agreement governing such
Series of Priority Lien Debt, for the enforceable benefit of all holders of
each existing and future Series of Parity Lien Debt, each existing and
future Parity Lien Representative and each existing and future holder of
Permitted Prior Liens:
(a) that all Priority Lien Obligations will be and are secured
equally and ratably by all Priority Liens at any time granted by the
Company or any other Pledgor to secure any Obligations in respect of
such Series of Priority Lien Debt, upon property constituting Common
Collateral for such Series of Priority Lien Debt and each existing and
future Series of Priority Lien Debt, and that all Priority Liens with
respect to such Priority Lien Debt will be enforceable by the
Collateral Trustee for the benefit of all holders of Priority Lien
Obligations;
(b) that the holders of Obligations in respect of such Series of
Priority Lien Debt are bound by the provisions of the Collateral Trust
Agreement, including the provisions relating to the ranking of
Priority Liens and the order of application of proceeds from
enforcement of Priority Liens; and
(c) consenting to and directing the Collateral Trustee to perform
its obligations under the Collateral Trust Agreement and the Security
Documents.
"Liquidated Damages" means all liquidated damages then owing pursuant to
the Registration Rights Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means the Mortgage dated as of the date of this Indenture and
substantially in the form attached as Exhibit J hereto, as such agreement may be
amended, modified or supplemented from time to time.
"Net Income" means, with respect to any specified Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (loss), together with any related provision for taxes on
such gain (loss), realized in connection with: (a) any Asset Sale; or (b)
the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or
any of its Restricted Subsidiaries; and
(2) any extraordinary gain (loss), together with any related provision
for taxes on such extraordinary gain (loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Casualty Event or 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,
legal, accounting and investment banking fees, sales commissions, any relocation
expenses incurred as a result of the Asset Sale, any repayment of Indebtedness
that was permitted to be secured by the assets sold or lost in such Asset Sale
or Casualty Event, any 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, and any
16
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (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 (including any rights that the
holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both
any holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other 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 Company or any of
its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Documents" means this Indenture, the Notes, the Collateral Trust
Agreement and the Security Documents.
"Note Guarantee" means the Guarantee by each Guarantor of the Company's
obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this Indenture.
The Initial Notes and the Additional Notes shall be treated as a single class
for all purposes under this Indenture, and unless the context otherwise
requires, all references to the Notes shall include the Initial Notes and any
Additional Notes.
"Obligations" means any principal (including reimbursement obligations with
respect to letters of credit whether or not drawn), interest (including, to the
extent legally permitted, all interest accrued thereon after the commencement of
any insolvency or liquidation proceeding at the rate, including any applicable
post-default rate, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding), premium (if any), fees,
indemnifications, reimbursements, expenses and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the Company's Offering Memorandum, dated as of
February 8, 2005, with respect to the Notes and the Note Guarantees.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, any Assistant Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 13.05
hereof.
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"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 13.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Parity Lien" means a Lien granted by a Security Document to the Collateral
Trustee, at any time, upon any property of the Company or any other Pledgor to
secure Parity Lien Obligations.
"Parity Lien Debt" means:
(1) the Notes issued on the date of this Indenture (including any
related Exchange Notes); and
(2) any other Indebtedness of the Company (including Additional Notes)
that is secured equally and ratably with the Notes by a Parity Lien that
was permitted to be incurred and so secured under each applicable Secured
Debt Document; provided that:
(a) the net proceeds are used to refund, refinance, replace,
defease, discharge or otherwise acquire or retire Priority Lien Debt
or other Parity Lien Debt; or
(b) on the date of incurrence of such Indebtedness, after giving
pro forma effect to the incurrence thereof and the application of the
proceeds therefrom, the Secured Leverage Ratio would not be greater
than 4.0 to 1.0;
provided, further, in the case of any Indebtedness referred to in clause (2) of
this definition:
(a) on or before the date on which such Indebtedness is incurred
by the Company, such Indebtedness is designated by the Company, in an
Officers' Certificate delivered to each Parity Lien Representative and
the Collateral Trustee, as "Parity Lien Debt" for the purposes of this
Indenture and the Collateral Trust Agreement; provided that no Series
of Secured Debt may be designated as both Parity Lien Debt and
Priority Lien Debt;
(b) such Indebtedness is governed by an indenture, credit
agreement or other agreement that includes a Lien Sharing and Priority
Confirmation and the Company delivers an Officers' Certificate to each
Parity Lien Representative and the Collateral Trustee confirming same;
and
(c) all requirements set forth in the Collateral Trust Agreement
as to the confirmation, grant or perfection of the Collateral
Trustee's Liens to secure such Indebtedness or Obligations in respect
thereof are satisfied (and the satisfaction of such requirements and
the other provisions of this clause (c) will be conclusively
established if the Company delivers to the Collateral Trustee an
Officers' Certificate stating that such requirements and other
provisions have been satisfied and that such Indebtedness is "Parity
Lien Debt").
"Parity Lien Documents" means, collectively, the Note Documents and this
Indenture, credit agreement or other agreement governing each other Series of
Parity Lien Debt and the Security Documents securing the Parity Lien
Obligations.
"Parity Lien Obligations" means Parity Lien Debt and all other Obligations
in respect thereof.
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"Parity Lien Representative" means:
(1) in the case of the Notes, the Trustee; or
(2) in the case of any other Series of Parity Debt, the trustee, agent
or representative of the holders of such Series of Parity Lien Debt who
maintains the transfer register for such Series of Parity Lien Debt and (a)
is appointed as a Parity Lien Representative (for purposes related to the
administration of the Security Documents) pursuant to this Indenture,
credit agreement or other agreement governing such Series of Parity Lien
Debt, together with its successors in such capacity, and (b) has become a
party to the Collateral Trust Agreement by executing a joinder in the form
required under the Collateral Trust Agreement.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means the distribution, installation and manufacture
of building products and the provision of professional installation, turn-key
framing, shell construction, design and similar construction-related services
associated with such products.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of the
Company that is a Guarantor;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company
and a Guarantor; 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 Company or a Restricted Subsidiary of the
Company that is a Guarantor;
(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 4.10 hereof.
(5) any acquisition of assets or Equity Interests to the extent
acquired in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company;
(6) any Investments received in compromise or resolution of (a)
obligations of trade creditors or customers that were incurred in the
ordinary course of business of the Company or any of its Restricted
Subsidiaries, 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 who
are not Affiliates;
(7) Investments represented by Hedging Obligations;
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(8) loans or advances to employees made in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company in an
aggregate principal amount not to exceed $3.0 million at any one time
outstanding;
(9) to the extent constituting an Investment, repurchases of the Notes
and other Parity Lien Debt;
(10) advances to customers in the ordinary course of business that are
recorded as accounts receivable on the consolidated balance sheet of such
Person;
(11) payroll, travel and similar advances to cover matters that are
expected at the time of the advances ultimately to be treated as expenses
for accounting purposes and than are made in the ordinary course of
business;
(12) receivables owing to the Company or any Restricted Subsidiary of
the Company if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or the Restricted Subsidiary deems reasonable
under the circumstances;
(13) Investments consisting of prepaid expenses, negotiable
instruments held for collection and lease, utility and workers
compensation, performance and similar deposits entered into as a result of
the operations of the business in the ordinary course of business;
(14) Investments in joint ventures in a Permitted Business having an
aggregate Fair Market Value (measured on the date such Investment was made
and without giving effect to subsequent changes in value) when taken
together with all other Permitted Investments made since the date of the
Indenture pursuant to this clause (14) that are at the time outstanding not
to exceed an amount equal to (a) $25.0 million, minus (b) the aggregate
amount of Permitted Investments outstanding pursuant to clause (15) below
in excess of $25.0 million; and
(15) 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 since the date of this Indenture pursuant to this
clause (15) that are at the time outstanding not to exceed an amount equal
to the greater of (a) $25.0 million and (b) 3.0% of Total Assets.
With respect to Permitted Investments made pursuant to clauses (14) and
(15) above, the Fair Market Value of any such Permitted Investment made in cash
or Cash Equivalents shall be deemed to equal the amount of cash, or the
principal or notional amount of Cash Equivalents, paid or contributed in respect
of such Permitted Investment.
"Permitted Liens" means:
(1) Liens held by the Collateral Trustee securing (a) Priority Lien
Debt in an aggregate principal amount not exceeding the Priority Lien Cap
and (b) all related Priority Lien Obligations;
(2) Liens held by the Collateral Trustee equally and ratably securing
the Notes to be issued on the date of this Indenture and all future Parity
Lien Debt and other Parity Lien Obligations;
20
(3) Liens in favor of the Company or the Guarantors;
(4) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Subsidiary of
the Company; 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
Company or the Subsidiary;
(5) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by the Company or any Subsidiary of the
Company; 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 Section 4.09(b)(4) hereof covering only the assets acquired
with or financed by such Indebtedness and replacements thereof and
accessions thereto;
(8) Liens existing on the date of this Indenture;
(9) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent 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 rights of set-off, carriers',
warehousemen's, landlord's 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 Company and its Restricted
Subsidiaries, taken as a whole;
(12) Liens created for the benefit of (or to secure) the Notes (or the
Note Guarantees);
(13) Liens to secure any Permitted Refinancing Indebtedness permitted
to be incurred under this Indenture; provided, however, that:
(a) 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); and
(b) the Indebtedness secured by the new Lien is not increased to
any amount greater than the sum of (x) the outstanding principal
amount, or, if greater, committed amount, of the Permitted Refinancing
Indebtedness and (y) an amount necessary to pay any fees and expenses,
including premiums, related to such renewal, refunding, refinancing,
replacement, defeasance or discharge;
21
(14) Liens incurred or pledges or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance, other social security benefits or other insurance related
obligations (including, but not limited to, in respect of deductibles,
self-insured retention amounts and premiums and adjustments thereto);
(15) Liens arising out of judgments, decrees, orders or awards in
respect of which adequate reserves have been made in conformity with GAAP,
and the Company shall in good faith be prosecuting an appeal or proceedings
for review which appeal or proceedings shall not have been finally
terminated, or if the period within which such appeal or proceedings may be
initiated shall not have expired, in each case, to the extent that the
amount of such judgments or awards do not constitute an Event of Default;
(16) deposits or pledges in connection with bids, leases and contracts
(other than contracts for the payment of money) entered into in the
ordinary course of business;
(17) Liens securing or by reason of a receivables facility or other
contractual requirements of a receivables facility incurred pursuant to
Section 4.09(b)(1)(ii) hereof;
(18) Liens securing Indebtedness entered into in accordance with
Section 4.09(b)(14) hereof; and
(19) Liens incurred in the ordinary course of business of the Company
or any Subsidiary of the Company with respect to obligations that do not
exceed $20.0 million at any one time outstanding.
"Permitted Payments to Sponsor" means, without duplication as to amounts:
(1) payments to any Principal for reimbursements of reasonable
accounting, legal and other expenses paid or incurred by such person on
behalf of the Company or in connection with such person's Investment in the
Company's shares when due, in an aggregate amount not to exceed $750,000
per annum; and
(2) for so long as the Company is a member of a group filing a
consolidated or combined tax return with JLL Building Products, LLC,
payments to JLL Building Products, LLC in respect of an allocable portion
of the tax liabilities of such group that is attributable to the Company
and its Subsidiaries ("Tax Payments") and to pay franchise or similar taxes
and fees of JLL Building Products, LLC required to maintain its legal
existence. The Tax Payments shall not exceed the lesser of (i) the amount
of the relevant tax (including any penalties and interest) that the Company
would owe if the Company were filing a separate tax return (or a separate
consolidated or combined return with its Subsidiaries that are members of
the consolidated or combined group), taking into account any carryovers and
carrybacks of tax attributes (such as net operating losses) of the Company
and such Subsidiaries from other taxable years and (ii) the net amount of
the relevant tax that JLL Building Products, LLC actually owes to the
appropriate taxing authority. Any Tax Payments received from the Company
shall be paid over to the appropriate taxing authority within 60 days of
JLL Building Products, LLC's receipt of such Tax Payments or refunded to
the Company.
"Permitted Prior Liens" means, regardless of whether this Indenture is in
effect at any time of determination:
22
(1) Liens described in clauses (1), (4), (5), (6), (7) or (8) of the
definition of "Permitted Liens"; and
(2) Permitted Liens that arise by operation of law and are not
voluntarily granted, to the extent entitled by law to priority over the
Liens created by the Security Documents.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace, defease or
discharge other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); 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 renewed, refunded,
refinanced, replaced, defeased or discharged (plus all accrued interest on
the Indebtedness and the amount of all fees and expenses, including
premiums, incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
later 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 renewed, refunded, refinanced, replaced, defeased or
discharged;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of payment
to, the Notes on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged; and
(4) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Pledge Agreement" means the Pledge Agreement dated as of the date of this
Indenture and substantially in the form attached as Exhibit G hereto, as such
agreement may be amended, modified or supplemented from time to time.
"Pledge and Security Agreement" means the Pledge and Security Agreement
dated as of the date of this Indenture and substantially in the form attached as
Exhibit I hereto, as such agreement may be amended, modified or supplemented
from time to time.
"Pledgors" means the Company, the Guarantors, until completion of the
Initial Public Offering, JLL Building Products, LLC, and any other Person (if
any) that provides collateral security for any Secured Debt Obligations.
"Principal" means JLL Building Products, LLC, a Delaware limited liability
company, JLL Partners, Inc., a Delaware corporation, and their respective
Affiliates.
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"Priority Lien" means a Lien granted by a Security Document to the
Collateral Trustee, at any time, upon any property of the Company or any other
Pledgor to secure Priority Lien Obligations.
"Priority Lien Cap" means, as of any date, the principal amount outstanding
under the Credit Agreement and/or the Indebtedness outstanding under any other
Credit Facility, in an aggregate principal amount not to exceed the sum of the
amount provided by clause (1) of the definition of Permitted Debt, as of such
date, plus the amount provided by clause (16) of the definition of Permitted
Debt, plus the amount of Priority Lien Debt incurred after the date of this
Indenture the net proceeds of which are used to repay Parity Lien Debt, less the
amount of Parity Lien Debt incurred after the date of this Indenture the net
proceeds of which are used to repay Priority Lien Debt. For purposes of this
definition, all letters of credit will be valued at the face amount thereof,
whether or not drawn and all Hedging Obligations will be valued at zero.
"Priority Lien Debt" means:
(1) Indebtedness of the Company under the Credit Agreement (including,
without limitation, revolving loans and letters of credit) that was
permitted to be incurred and secured under each applicable Secured Debt
Document (or as to which the lenders under the Credit Agreement obtained an
Officers' Certificate at the time of incurrence to the effect that such
Indebtedness was permitted to be incurred and secured by all applicable
Secured Debt Documents);
(2) Indebtedness of the Company under any other Credit Facility that
is secured equally and ratably with the Credit Agreement by a Priority Lien
that was permitted to be incurred and so secured under each applicable
Secured Debt Document; provided, in the case of any Indebtedness referred
to in this clause (2), that:
(a) on or before the date on which such Indebtedness is incurred
by the Company, such Indebtedness is designated by the Company, in an
Officers' Certificate delivered to each Priority Lien Representative
and the Collateral Trustee, as "Priority Lien Debt" for the purposes
of the Secured Debt Documents; provided that no Series of Secured Debt
may be designated as both Parity Lien Debt and Priority Lien Debt;
(b) such Indebtedness is governed by a credit agreement or other
agreement that includes a Lien Sharing and Priority Confirmation; and
(c) all requirements set forth in the Collateral Trust Agreement
as to the confirmation, grant or perfection of the Collateral
Trustee's Lien to secure such Indebtedness or Obligations in respect
thereof are satisfied (and the satisfaction of such requirements and
the other provisions of this clause (c) will be conclusively
established if the Company delivers to the Collateral Trustee an
Officers' Certificate stating that such requirements and other
provisions have been satisfied and that such Indebtedness is "Priority
Lien Debt"); and
(3) Hedging Obligations of the Company incurred to hedge or manage
interest rate risk with respect to any Priority Lien Debt or Parity Lien
Debt; provided, that:
(a) such Hedging Obligations are secured by a Priority Lien on
all of the assets and properties that secure the Indebtedness in
respect of which such Hedging Obligations are incurred; and
24
(b) such Priority Lien is senior to or on a parity with the
Priority Liens securing the Indebtedness in respect of which such
Hedging Obligations are incurred.
"Priority Lien Documents" means the Credit Agreement and any other Credit
Facility pursuant to which any Priority Lien Debt is incurred, the Collateral
Trust Agreement and the Security Documents securing the Priority Lien
Obligations.
"Priority Lien Obligations" means the Priority Lien Debt and all other
Obligations in respect of Priority Lien Debt.
"Priority Lien Representative" means (1) the Credit Agreement Agent or (2)
in the case of any other Series of Priority Lien Debt, the trustee, agent or
representative of the holders of such Series of Priority Lien Debt who maintains
the transfer register (if any) for such Series of Priority Lien Debt and is
appointed as a representative of the Priority Debt (for purposes related to the
administration of the Security Documents) pursuant to the credit agreement or
other agreement governing such Series of Priority Lien Debt.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(1)
hereof to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of February 11, 2005, among the Company, the Guarantors and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements among the Company, the
Guarantors and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the
Company to the purchasers of Additional Notes to register such Additional Notes
under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in the
form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note in the
form of Exhibit A2 hereto deposited with or on behalf of and registered in the
name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Related Party" means:
(1) any controlling stockholder, 80% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of any Principal; or
25
(2) any trust, corporation, partnership, limited liability company or
other entity, the beneficiaries, stockholders, partners, members, owners or
Persons beneficially holding an 80% or more controlling interest of which
consist of any one or more Principals and/or such other Persons referred to
in the immediately preceding clause (1).
"Required Parity Lien Debtholders" means, at any time, the holders of more
than 50% of the sum of:
(1) the aggregate outstanding principal amount of Parity Lien Debt
(including outstanding letters of credit whether or not then available or
drawn); and
(2) other than in connection with the exercise of remedies, the
aggregate unfunded commitments to extend credit which, when funded, would
constitute Parity Lien Debt.
For purposes of this definition, (a) Parity Lien Debt registered in the name of,
or beneficially owned by, the Company or any Affiliate of the Company will be
deemed not to be outstanding, and (b) votes will be determined in accordance
with the Collateral Trust Agreement.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group.
"Sale of Collateral" means any Asset Sale involving a sale or other
disposition of Collateral.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means Parity Lien Debt and Priority Lien Debt.
"Secured Debt Documents" means the Parity Lien Documents and the Priority
Lien Documents.
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"Secured Debt Representative" means each Parity Lien Representative and
each Priority Lien Representative.
"Secured Leverage Ratio" means, on any date, the ratio of:
(1) the aggregate principal amount of Secured Debt outstanding on such
date plus all Indebtedness of Restricted Subsidiaries of the Company that
are not Guarantors outstanding on such date (and, for this purpose, letters
of credit will be deemed to have a principal amount equal to the face
amount thereof, whether or not drawn), to:
(2) the aggregate amount of the Company's Consolidated Cash Flow for
the most recent four full fiscal quarter period for which financial
information is available.
In addition, for purposes of calculating the Secured Leverage Ratio:
(1) acquisitions that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers or consolidations or
acquisitions of assets, or any Person or any of its Restricted Subsidiaries
acquired by merger, consolidation or the acquisition of all or
substantially all of its assets by the specified Person or any of its
Restricted Subsidiaries, and including any related financing transactions
and including increases in ownership of Restricted Subsidiaries, during
such four full fiscal quarter reference period or subsequent to such
reference period and on or prior to the date on which the event for which
the calculation of the Secured Leverage Ratio is made (the "Leverage
Calculation Date") will be given pro forma effect in accordance with
Regulation S-X under the Securities Act) as if they had occurred on the
first day of such four full fiscal quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Leverage Calculation Date will be excluded;
(3) any Person that is a Restricted Subsidiary on the Leverage
Calculation Date will be deemed to have been a Restricted Subsidiary at all
times during such four full fiscal quarter period; and
(4) any Person that is not a Restricted Subsidiary on the Leverage
Calculation Date will be deemed not to have been a Restricted Subsidiary at
any time during such four full fiscal quarter period.
"Secured Obligations" means Parity Lien Obligations and Priority Lien
Obligations.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means each Lien Sharing and Priority Confirmation, and
all security agreements, pledge agreements (including, without limitation, the
Pledge Agreement), collateral assignments, mortgages and deeds of trust
(including, without limitation, the Mortgage), collateral agency agreements,
control agreements or other grants or transfers for security executed and
delivered by the Company or any other Pledgor creating (or purporting to create)
a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of
the holders of the Parity Lien Obligations or the Priority Lien Obligations, as
applicable, in each case, as amended, modified, renewed, restated or replaced,
in whole or in part, from time to time, in accordance with its terms of the
Collateral Trust Agreement.
27
"Series of Parity Lien Debt" means, severally, the Notes and each other
issue or series of Parity Lien Debt for which a single transfer register is
maintained.
"Series of Priority Lien Debt" means, severally, the Indebtedness
(including, without limitation, revolving loans and letters of credit)
outstanding under the Credit Agreement and any other Credit Facility that
constitutes Priority Lien Debt.
"Series of Secured Debt" means each Series of Parity Lien Debt and each
Series of Priority Lien Debt.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary 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.
"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, if such Indebtedness was in
existence on the date of this Indenture, or if incurred subsequent to the date
of this Indenture, in accordance with its terms, and will 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, 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).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. Sections
77aaa-77bbbb).
"Total Assets" means the total consolidated assets of the Company and its
Restricted Subsidiaries as set forth on the most recent consolidated balance
sheet of the Company and its Restricted Subsidiaries.
"Transactions" means issuance and sale of the Notes and execution of the
Credit Agreement and the application of the net offering proceeds from the Notes
and borrowings under the Credit Agreement to:
(1) repay existing debt;
(2) pay dividends to stockholders in an amount not to exceed
$185,400,000;
28
(3) make distributions and payments to holders of options to purchase
shares of the Company's Capital Stock in an amount not to exceed
$33,100,000; or
(4) to pay the fees and expenses associated with the issuance and sale
of the Notes and the execution of the Credit Agreement.
"Treasury Rate" means, as of any redemption date, the yield to maturity as
of such redemption date 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 the 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 the redemption date to February 15, 2007;
provided, however, that if the period from the redemption date to February 15,
2007, is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be
used.
"Trustee" means Wilmington Trust Company until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means
the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear and is
not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors, but only to the
extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party to any
agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries 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 Company or any of its Restricted
Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any specified 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.
29
"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 will elapse between such date and the making of
such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any specified Person means a
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) will at
the time be owned by such Person or by one or more Wholly-Owned Restricted
Subsidiaries of such Person.
Section 1.02 Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction"............................................ 4.11
"Asset Sale Offer"................................................. 3.09
"Authentication Order"............................................. 2.02
"Change of Control Offer".......................................... 4.15
"Change of Control Payment"........................................ 4.15
"Change of Control Payment Date"................................... 4.15
"Covenant Defeasance".............................................. 8.03
"DTC".............................................................. 2.03
"Event of Default"................................................. 6.01
"Excess Proceeds".................................................. 4.10
"incur"............................................................ 4.09
"Legal Defeasance"................................................. 8.02
"Offer Amount"..................................................... 3.09
"Offer Period"..................................................... 3.09
"Paying Agent"..................................................... 2.03
"Permitted Debt"................................................... 4.09
"Payment Default" ................................................. 6.01
"Purchase Date".................................................... 3.09
"Redemption Date" ................................................. 3.07
"Registrar"........................................................ 2.03
"Restricted Payments".............................................. 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
30
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the Note
Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
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 in the plural
include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will
be deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication will
be substantially in the form of Exhibits A1 and A2 hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note will be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and are
hereby expressly made, a part of this Indenture and the Company, the Guarantors
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.
(b) Global Notes. Notes issued in global form will be substantially in the
form of Exhibits A1 or A2 hereto (including the Global Note Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes issued in definitive form will be substantially in the form of
31
Exhibit A1 hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note will represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S will be issued initially in the form of the Regulation S Temporary
Global Note, which will be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its Corporate Trust office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Restricted Period will
be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with copies of
certificates from Euroclear and Clearstream certifying that they have
received certification of non-United States beneficial ownership of 100% of
the aggregate principal amount of the Regulation S Temporary Global Note
(except to the extent of any beneficial owners thereof who acquired an
interest therein during the Restricted Period pursuant to another exemption
from registration under the Securities Act and who will take delivery of a
beneficial ownership interest in a 144A Global Note or an IAI Global Note
bearing a Private Placement Legend, all as contemplated by Section 2.06(b)
hereof); and
(2) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in
the Regulation S Temporary Global Note will be exchanged for beneficial
interests in the Regulation S Permanent Global Note pursuant to the Applicable
Procedures. Simultaneously with the authentication of the Regulation S Permanent
Global Note, the Trustee will cancel the Regulation S Temporary Global Note. The
aggregate principal amount of the Regulation S Temporary Global Note and the
Regulation S Permanent Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(3) Euroclear and Clearstream Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream Banking" and "Customer Handbook" of Clearstream
will be applicable to transfers of beneficial interests in the Regulation S
Temporary Global Note and the Regulation S Permanent Global Note that are
held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note will nevertheless be valid.
32
A Note will not be valid until authenticated by the manual signature of the
Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by
two Officers (an "Authentication Order"), authenticate Notes for original issue
that may be validly issued under this Indenture, including any Additional Notes.
The aggregate principal amount of Notes outstanding at any time may not exceed
the aggregate principal amount of Notes authorized for issuance by the Company
pursuant to one or more Authentication Orders, except as provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. 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 Holders or an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
will keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company will notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes, and will notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) will have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
will 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 Company, the Trustee will serve as Paying Agent for
the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of all Holders
and shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company will furnish to the Trustee at least seven Business Days
33
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the
Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it
is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within
120 days after the date of such notice from the Depositary;
(2) the Company in its sole discretion determines that the Global
Notes (in whole but not in part) should be exchanged for Definitive Notes
and delivers a written notice to such effect to the Trustee; provided that
in no event shall the Regulation S Temporary Global Note be exchanged by
the Company for Definitive Notes prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or
(3) there has occurred and is continuing a Default or Event of Default
with respect to the Notes.
Upon the occurrence of either of the preceding events in (1) or (2) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Temporary Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser). Beneficial interests in any Unrestricted Global
Note may be transferred to
34
Persons who take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(1) above, the transferor
of such beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause
to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or
exchanged; and
(ii) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant
account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above;
provided that in no event shall Definitive Notes be issued upon the
transfer or exchange of beneficial interests in the Regulation S Temporary
Global Note prior to (A) the expiration of the Restricted Period and (B)
the receipt by the Registrar of any certificates required pursuant to Rule
903 under the Securities Act.
Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
35
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Permanent Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the
36
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
37
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global Note to
Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar of
any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
38
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company will
execute and the Trustee will authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) will be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect
Participant. The Trustee will deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will
not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a
QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a
39
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the
case of clause (B) above, the 144A Global Note, in the case of clause
(C) above, the Regulation S Global Note, and in all other cases, the
IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the
40
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee will cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or
(3) above at a time when an Unrestricted Global Note has not yet been
issued, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate one
or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.06(e), the Registrar will register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or
41
transferred to a Person or Persons who take delivery thereof in the form of
an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note,
a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions
from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee
will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Notes accepted for exchange in the Exchange Offer by
Persons that certify in the applicable Letters of Transmittal that (A) they
are not Broker-Dealers, (B) they are not participating in a distribution of
the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and
42
(2) Unrestricted Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer by Persons that certify in the
applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B)
they are not participating in a distribution of the Exchange Notes and (C)
they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends will appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION
OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE
43
STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY
INTEREST HEREIN WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2),
(d)(3), (e)(2), (e)(3) or (f) of this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) will not bear the
Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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."
(3) Regulation S Temporary Global Note Legend. The Regulation S
Temporary Global Note will bear a Legend in substantially the following
form:
44
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will 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 will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will 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 will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company
will execute and the Trustee will authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section
2.02 hereof or at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company and the Registrar may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05
hereof).
(3) The Registrar will not be required to register the transfer of or
exchange of any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes will be the
valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section
3.02 hereof and ending at the close of business on the day of
selection;
(B) to register the transfer of or to exchange any Note selected
for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part; or
45
(C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.
(6) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of and interest on such Notes
and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel required
to be submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company will issue and the Trustee, upon receipt of an
Authentication Order, will authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. Each of the Company and, as contemplated by Section 7.07 hereof, the
Trustee may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note; however, Notes held by the Company or a Subsidiary of the Company
shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes will
be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
46
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order, will
authenticate temporary Notes. Temporary Notes will be substantially in the form
of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this
Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent will forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment. The Trustee and no
one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will destroy canceled Notes
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all canceled Notes will be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption
shall occur;
47
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer
to purchase at any time, the Trustee will select Notes for redemption or
purchase on a pro rata basis except:
(1) 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
(2) if otherwise required by law.
In the event of partial redemption or purchase by lot, the particular Notes
to be redeemed or purchased will be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption or purchase date
by the Trustee from the outstanding Notes not previously called for redemption
or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company will mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address, except that redemption notices may
be mailed more than 60 days prior to a redemption date if the notice is issued
in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 12 hereof.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion will be issued upon cancellation of the
original Note;
(4) the name and address of the Paying Agent;
48
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date and the only remaining right of Holders of such
Notes is to receive payment of the redemption price upon surrender of Notes
redeemed;
(7) the paragraph of the Notes and/or section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee will give the notice of redemption in
the Company's name and at its expense; provided, however, that the Company has
delivered to the Trustee, at least 45 days prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
On or prior to the redemption or purchase date, the Company will deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
or purchase price of and accrued interest and Liquidated Damages, if any, on all
Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent
will promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest and Liquidated Damages, if
any, on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption or purchase date, interest will cease to accrue on the
Notes or the portions of Notes called for redemption or purchase, and the only
remaining right of Holders of such Notes is to receive payment of the redemption
price or purchase price upon surrender of Notes redeemed or purchased. If a Note
is redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Company
will issue and, upon receipt of an Authentication Order, the Trustee will
authenticate for the Holder at the expense of the
49
Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to February 15, 2007, the Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture (including any additional Notes issued after the
date of this Indenture) at a redemption price of 100% of the principal amount
thereof, plus a premium equal to 100% of the principal amount of the Notes
multiplied by the sum of the LIBOR Rate in effect on the date of such redemption
notice plus 4.25%, plus accrued and unpaid interest and Liquidated Damages, if
any, 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 of Notes originally
issued under this Indenture (excluding Notes held by the Company and its
Subsidiaries) 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.
(b) At any time prior to February 15, 2007, the Company may also redeem all
or a part of the Notes, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount of Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption (the "Redemption Date"), subject to
the rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date.
(c) Except pursuant to Sections 3.07(a) and (b) hereof, the Notes will not
be redeemable at the Company's option prior to February 15, 2007.
(d) On or after February 15, 2007, the Company may redeem all or a part of
the Notes upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, on the Notes
redeemed, to the applicable redemption date, if redeemed during the twelve-month
period beginning on February 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
---- ----------
2007 .................. 102%
2008 .................. 101%
2009 and thereafter ... 100%
Unless the Company defaults in the payment of the redemption price, interest
will cease to accrue on the Notes or portions thereof called for redemption on
the applicable redemption date.
(e) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
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The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is required
to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"),
it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other
Parity Lien Debt 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 Asset Sale Offer will remain open for a period of at least
20 Business Days following its commencement and not more than 30 Business Days,
except to the extent that a longer period is required by applicable law (the
"Offer Period"). No later than three Business Days after the termination of the
Offer Period (the "Purchase Date"), the Company will apply all Excess Proceeds
(the "Offer Amount") to the purchase of Notes and such other Parity Lien Debt
(on a pro rata basis, if applicable) or, if less than the Offer Amount has been
tendered, all Notes and other Indebtedness tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased will be made in the same manner
as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, will 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 will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue
to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer will cease to accrue
interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may elect to have Notes purchased in integral multiples of
$1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any
Asset Sale Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
51
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(8) that, if the aggregate principal amount of Notes and other Parity
Lien Debt surrendered by holders thereof exceeds the Offer Amount, the
Company will select the Notes and other Parity Lien Debt to be purchased on
a pro rata basis based on the principal amount of Notes and such other
Parity Lien Debt surrendered (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and will
deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.09. The Company, the Depositary or the Paying Agent, as the case
may be, will promptly (but in any case not later than five days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, and the Company will promptly issue a new Note, and the Trustee,
upon written request from the Company, will authenticate and mail or deliver (or
cause to be transferred by book entry) such new Note to such Holder, in a
principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Asset Sale
Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium, if any,
and interest and Liquidated Damages, if any, on, the Notes on the dates and in
the manner provided in the Notes. Principal, premium, if any, and interest and
Liquidated Damages, if any, will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
52
Section 4.02 Maintenance of Office or Agency.
The Company will maintain an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission will in any manner relieve the Company of
its obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. The Company will 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 Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company will furnish to the Holders of
Notes or cause the Trustee to furnish to the Holders of Notes, within the time
periods specified in the SEC's rules and regulations:
(1) all quarterly and annual reports that would be required to be
filed with the SEC on Forms 10-Q and 10-K if the Company were required to
file such reports (including, in connection with the report of Form 10-K
for the year ending December 31, 2004, the additional time to file
permitted by Rule 12b-25 under the Securities Exchange Act of 1934); and
(2) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports.
The availability of the foregoing materials on either the SEC's XXXXX
database service or on the Company's website shall be deemed to satisfy the
Company's delivery obligation to deliver such reports. However, subsequent to
the filing of a registration statement on Form S-1 containing the financial
information for the respective annual or quarterly reporting periods required to
be included in such Form S-1 as of the date filed and such other information
otherwise required by the reports referenced in clause (2) above, and prior to
the effectiveness or withdrawal of any such registration statement, the
availability of such registration statement on the SEC's XXXXX database service,
including any amendments to the registration statement diligently filed, shall
be deemed to satisfy the Company's obligation to deliver the reports referenced
in clauses (1) and (2) above, even if the amendments to the registration
statement containing such information are filed after the time periods within
which such information would have otherwise been required to be reported on such
reports.
All such reports will be prepared in all material respects in accordance
with all of the rules and regulations applicable to such reports. Each annual
report on Form 10-K will include a report on the Issuer's consolidated financial
statements by the Issuer's certified independent accountants. In addition,
following the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement,
53
the Company will file a copy of each of the reports referred to in clauses (1)
and (2) above with the SEC for public availability within the time periods
specified in the rules and regulations applicable to such reports (unless the
SEC will not accept such a filing) and will post the reports on its website
within those time periods.
If, at any time after consummation of the Exchange Offer contemplated by
the Registration Rights Agreement, the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding
paragraph with the SEC within the time periods specified above unless the SEC
will not accept such a filing. The Company will not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding
the foregoing, the SEC will not accept the Company's filings for any reason, the
Company will post the reports referred to in the preceding paragraph on its
website within the time periods that would apply if the Company were required to
file those reports with the SEC.
(b) If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
paragraph (a) of this Section 4.03 will include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of
the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company.
(c) For so long as any Notes remain outstanding, if at any time they are
not required to file with the SEC the reports required by paragraphs (a) and (b)
of this Section 4.03, the Company and the Guarantors will furnish to the Holders
and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor is so
required under the TIA) shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and the Security Documents, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and the Security Documents
in all material respects and is not in default in the performance or observance
of any of the terms, provisions and conditions of this Indenture and the
Security Documents (or, if a Default or Event of Default has occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge) and that to the best of his or her knowledge no event has occurred
and remains in existence by reason of which payments on account of the principal
of or interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event.
(b) So long as any of the Notes are outstanding, the Company will deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay, prior
to delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by
54
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends, payments or distributions payable
in Equity Interests (other than Disqualified Stock) of the Company and
other than dividends or distributions payable to the Company or a
Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness of the
Company or any Guarantor that is contractually subordinated to the Notes or
to any Note Guarantee (excluding any intercompany Indebtedness between or
among the Company and any of its Restricted Subsidiaries), except a payment
of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through
(4) 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) the Company would, 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 full fiscal quarter
period, have been permitted to incur at least $1.00 of additional
55
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries since the date of this Indenture (excluding Restricted
Payments permitted by clauses (2), (3), (4), (6), (8), (9), (10), (11) and
(13) of paragraph (b) of this Section 4.07, and excluding Restricted
Payments attributable to proceeds of key-man life insurance, with respect
to clause (5) of paragraph (b) of this Section 4.07), is less than the sum,
without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the date of this Indenture to
the end of the Company's most recently ended fiscal quarter for which
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
Company since the date of this Indenture as a contribution to its
common equity capital or from the issue or sale of Equity Interests of
the Company (other than Disqualified Stock) or from the issue or sale
of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted
into or exchanged for such Equity Interests (other than Equity
Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company); plus
(C) to the extent that any Restricted Investment that was made
after the date of this Indenture is sold for cash or otherwise
liquidated or repaid for cash, the cash return of capital with respect
to such Restricted Investment (less the cost of disposition, if any);
plus
(D) to the extent that any Unrestricted Subsidiary of the Company
designated as such after the date of this Indenture is redesignated as
a Restricted Subsidiary after the date of this Indenture, the Fair
Market Value of the Company's Investment in such Subsidiary as of the
date of such redesignation; plus
(E) 100% of any dividends received by the Company or a
Wholly-Owned Restricted Subsidiary of the Company that is a Guarantor
after the date of this Indenture from an Unrestricted Subsidiary of
the Company, to the extent that such dividends were not otherwise
included in the Consolidated Net Income of the Company for such
period.
(b) With respect to (a) any payments made pursuant to clauses (2), (3),
(4), (5) (other than with respect to proceeds of key-man life insurance), (7)
and (12) below, so long as no Default or Event of Default has occurred and is
continuing or would be caused by such payments, and (b) any payments made
pursuant to clauses (1), (5) (with the cash proceeds of key-man life insurance
policies and any carryover of such amount as permitted by such clause (5)), (6),
(8), (9), (10), (11) and (13) below, regardless of whether any Default or Event
of Default has occurred and is continuing or would be caused by such payment,
the provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or the consummation of any irrevocable
redemption within 60 days after the date of declaration of the dividend or
giving of the redemption notice, as
56
the case may be, if at the date of declaration or notice, the dividend or
redemption 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 Company) of, Equity Interests of the Company (other than
Disqualified Stock) or from the substantially concurrent contribution of
common equity capital to the Company; provided that the amount of any such
net cash proceeds that are utilized for any such Restricted Payment will be
excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the repurchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness of the Company or any Guarantor that
is contractually subordinated to the Notes or to any Note Guarantee with
the net cash proceeds from a substantially concurrent incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend (or, in the case of any partnership or
limited liability company, any similar distribution) by a Restricted
Subsidiary of the Company to the holders of its Equity Interests on a pro
rata basis;
(5) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company or any Restricted Subsidiary
of the Company held by any current or former officer, director or employee
of the Company or any of its Restricted Subsidiaries pursuant to any equity
subscription agreement, stock option agreement, shareholders' agreement or
similar agreement or otherwise approved by the Board of Directors; provided
that the aggregate price paid for all such repurchased, redeemed, acquired
or retired Equity Interests in any fiscal year may not exceed the sum of
(i) $3.0 million and (ii) the cash proceeds of key-man life insurance
policies received in such year by the Company and its Restricted
Subsidiaries (it being understood, however, that unused amounts permitted
to be paid pursuant to this proviso from any fiscal year are available to
be carried over to the subsequent fiscal year); provided, further, that the
aggregate amount spent pursuant to this clause (5) in any fiscal year in
which unused amounts from a prior fiscal year have been carried forward may
not exceed the sum of (x) $6.0 million and (y) the unused cash proceeds of
such key-man life insurance policies;
(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 regularly scheduled or accrued
dividends to holders of any class or series of common Disqualified Stock of
the Company or any Restricted Subsidiary of the Company issued on or after
the date of this Indenture in accordance with Section 4.09(a) hereof;
(8) the declaration and payment of regularly scheduled or accrued
dividends to holders of any class or series of preferred Disqualified Stock
of the Company or any Restricted Subsidiary of the Company issued on or
after the date of this Indenture in accordance Section 4.09(a) hereof;
(9) dividends to stockholders and distributions and payments to the
holders of options of the Company's Capital Stock made by the Company in
the manner described in the section entitled "Use of Proceeds" in the
Offering Memorandum;
(10) Permitted Payments to Sponsor;
57
(11) cash payments in lieu of fractional shares issuable as dividends
on Capital Stock of the Company or any of its Restricted Subsidiaries;
(12) following the Initial Public Offering, dividends of up to 6.0%
per annum of the net proceeds received by the Company in such Initial
Public Offering; and
(13) other Restricted Payments in an aggregate amount not to exceed
$30.0 million since the date of this Indenture.
The amount of all Restricted Payments (other than cash) will 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 Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries 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 Company or any of its Restricted Subsidiaries, or with respect to
any other interest or participation in, or measured by, its profits, or pay
any indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries (including for purposes of
this clause (3) distributions of property as dividends on capital stock).
(b) However, the preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness, any Credit Facility,
including the Credit Agreement, and any other agreements as in effect on
the date of this Indenture, and any amendments, restatements,
modifications, renewals, supplements, refundings, replacements or
refinancings of those agreements; provided that the amendments,
restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially 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, the Notes, the Note Guarantees and the Security
Documents;
(3) applicable law, rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries 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
58
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;
(5) customary non-assignment provisions in contracts, leases and
licenses entered into in the ordinary course of business;
(6) purchase money obligations for property or equipment acquired for
use in the business of the Company or any of its Restricted Subsidiaries
and Capital Lease Obligations that impose restrictions on the property
purchased or leased of the nature described in clause (3) of Section
4.08(a) hereof;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary
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 Section 4.12 hereof 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, asset sale agreements, sale-leaseback
agreements, stock sale agreements and other similar agreements entered into
with the approval of the Company's Board of Directors, which limitation is
applicable only to the assets that are the subject of such agreements; and
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries 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 Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness
(including Acquired Debt) or issue preferred stock, if, the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock or
such preferred stock is issued, as the case may be, would have been at least 2.0
to 1.0, 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 full fiscal quarter period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by the Company and any Guarantor of (i)
Indebtedness and letters of credit under Credit Facilities in an aggregate
principal amount at any one time outstanding under
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this clause (1) (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) and (ii) Indebtedness under any
receivables facility (such amounts outstanding under any such receivables
facility not to exceed $125.0 million outstanding at any given time) in an
aggregate principal amount at any one time outstanding under this clause
(1) not to exceed the greater of:
(A) $375.0 million less the aggregate amount of all Net Proceeds
of Asset Sales or Casualty Events applied by the Company or any of its
Restricted Subsidiaries since the date of this Indenture 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 4.10 hereof; and
(B) the Borrowing Base;
(2) the incurrence by the Company or any of its Restricted
Subsidiaries of Existing Indebtedness and Existing Disqualified Stock;
(3) the incurrence by the Company and the Guarantors of Indebtedness
represented by the Notes and the related Note Guarantees to be issued on
the date of this Indenture and the Exchange Notes and the related Note
Guarantees to be issued pursuant to the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries 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 in the business of the Company or any of its Restricted
Subsidiaries (whether through the direct purchase of assets or the Capital
Stock of any Person owning such assets) within 90 days of such purchase,
design, construction, installation or improvement in an aggregate principal
amount, including all Indebtedness incurred to renew, refund, refinance,
replace, defease or discharge any Indebtedness incurred pursuant to this
clause (4), not to exceed the greater of (a) $25.0 million and (b) 3.0% of
Total Assets at any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to renew, refund, refinance, replace,
defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under
Section 4.09(a) hereof or clauses (2), (3) or (5) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such
Indebtedness and the payee is not the Company or a Guarantor, such
Indebtedness must be expressly subordinated, upon an Event of Default,
to the prior payment in full in cash of all Obligations then due with
respect to the Notes, in the case of the Company, or the Note
Guarantee, in the case of a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other
than the Company or a Restricted
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Subsidiary of the Company and (ii) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company, will be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, that was not permitted by
this clause (6);
(7) the issuance by any of the Company's Restricted Subsidiaries to
the Company or to any of its Restricted Subsidiaries of shares 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 Company or a Restricted Subsidiary of the Company; and
(B) any sale or other transfer of any such preferred stock to a
Person that is not either the Company or a Restricted Subsidiary of
the Company,
will be deemed, in each case, to constitute an issuance of such preferred
stock by such Restricted Subsidiary that was not permitted by this clause
(7);
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company that
was permitted to be incurred by another provision of this Section 4.09;
provided that if the Indebtedness being guaranteed is subordinated to or
pari passu with the Notes, then the guarantee shall be subordinated or pari
passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers' compensation claims,
self-insurance obligations, bankers' acceptances, trade letters of credit,
performance and surety bonds in the ordinary course of business;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries 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) Indebtedness arising from any agreement entered into by the
Company or any of its Restricted Subsidiaries providing for
indemnification, purchase price adjustment, holdback, contingency payment
obligations based on the performance of the acquired or disposed assets or
similar obligations (other than Guarantees of Indebtedness) incurred by any
Person in connection with the acquisition or disposition of assets
permitted by this Indenture;
(13) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Debt of Restricted Subsidiaries acquired or
assumed by the Company or another Restricted Subsidiary of the Company, or
resulting from the merger or consolidation of one or more Persons into or
with one or more Restricted Subsidiaries of the Company; provided that (a)
such Acquired Debt is not incurred in contemplation of the respective
acquisition, merger or consolidation, and (b) after giving effect to any
Acquired Debt acquired or assumed pursuant to this clause (13),
61
(A) the Company would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to Section 4.09(a) hereof; or
(B) the Company's Fixed Charge Coverage Ratio at the time of such
acquisition or merger, after giving pro forma effect to such
acquisition or merger, would be greater than the Company's actual
Fixed Charge Coverage Ratio immediately prior to such acquisition or
merger;
(14) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness for the sole purpose of financing the payment
of insurance premiums in the ordinary course of business;
(15) the incurrence by the Company of Disqualified Capital Stock
issued to any officer, director or employee of the Company or any of its
Restricted Subsidiaries pursuant to any equity subscription agreement,
stock option agreement, shareholder's agreement or similar agreement, or
otherwise approved by the Board of Directors; and
(16) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Indebtedness incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (16), not to
exceed $50.0 million.
The Company will not incur, and will not permit any Guarantor to incur, any
Indebtedness (including Permitted Debt) that is contractually subordinated in
right of payment to any other Indebtedness of the Company or such Guarantor
unless such Indebtedness is also contractually subordinated in right of payment
to the Notes and the applicable Note Guarantee on substantially identical terms;
provided, however, that no Indebtedness will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company solely
by virtue of being unsecured or by virtue of being secured on a first or junior
Lien basis.
For purposes of determining compliance with this Section 4.09, 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 (16) above, or is
entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be
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 4.09. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated under
this Indenture will initially be deemed to have been incurred on such date in
reliance on the exception provided by clause (1) of the definition of Permitted
Debt. The accrual of interest, 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, the reclassification of preferred stock as
Indebtedness due to a change in accounting principles, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09; provided, in each such case, that the amount of any such accrual,
accretion or payment is included in Fixed Charges of the Company as accrued.
Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to
this Section 4.09 shall not be deemed to be exceeded solely as a result of
fluctuations in exchange rates or currency values.
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The amount of any Indebtedness outstanding as of any date will 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.
Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
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 Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents. For purposes of this provision, each of the following will be
deemed to be cash:
(A) any liabilities, as shown on the Company's most recent
consolidated balance sheet, of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are
by their terms subordinated to the Notes or any Note Guarantee) that
are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such
Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that
are, within 180 days, converted by the Company or such Restricted
Subsidiary into cash or Cash Equivalents, to the extent of the cash
received in that conversion; and
(C) any stock or assets of the kind referred to in clauses (2) or
(4) of Section 4.10(b) hereof.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset
Sale or a Casualty Event, the Company (or the applicable Restricted Subsidiary,
as the case may be) may apply such Net Proceeds:
(1) to repay Priority Lien Debt and, if such Priority Lien Debt 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, if, after
giving effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Restricted Subsidiary of the Company;
63
(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;
provided, that the application of any Net Proceeds from an Asset Sale that
constitutes a Sale of Collateral or from a Casualty Event in accordance with
clauses (2) through (4) of this Section 4.10(b) shall be used to purchase,
acquire or improve assets that would constitute Collateral; and provided,
further, that the requirements of clauses (2) through (4) of this Section
4.10(b) shall be deemed to be satisfied if a binding agreement committing to
make the acquisitions or expenditures referenced in such clauses is entered into
by the Company or its Restricted Subsidiaries within 365 days after receipt of
any Net Proceeds and such Net Proceeds are applied in accordance with such
agreement; provided, however, that if the Net Proceeds to be applied pursuant to
such agreement are not applied within 180 days of the date of such agreement,
such Net Proceeds shall be considered Excess Proceeds.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as
provided in Section 4.10(b) hereof will constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $15.0 million, within five days
thereof, the Company will make an Asset Sale Offer to all Holders of Notes and
all holders of other Parity Lien Debt 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 to purchase the maximum principal amount of Notes
and such other Parity Lien Debt that may be purchased out of the Excess
Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the
principal amount plus accrued and unpaid interest and Liquidated Damages, if
any, to the date of purchase (or, in respect of such Parity Lien Debt, such
lesser price, if only, as may be provided for by the terms of such Parity Lien
Debt), and will be payable in cash. To the extent that the aggregate amount of
Notes and Parity Lien Debt tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes and Parity Lien Debt tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other
Parity Lien Debt to be purchased on a pro rata basis. Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will 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. To the extent that the
provisions of any securities laws or regulations conflict with Section 3.09
hereof or this Section 4.10, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under Section 3.09 hereof or this Section 4.10 by virtue of such
compliance.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries 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 Company (each an "Affiliate Transaction"), unless:
(1) the Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
64
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $7.5 million, a resolution of the Board of Directors of the
Company set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with clause (1) of this Section 4.11(a)
and that such Affiliate Transaction has been approved by a majority of
the disinterested members, if any, of the Board of Directors of the
Company; 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 Company
or such Subsidiary of such Affiliate Transaction from a financial
point of view issued by an accounting, appraisal or investment banking
firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11 (a)
hereof:
(1) any employment agreement, employee benefit plan, officer, employee
or director indemnification agreement or any similar arrangement entered
into by the Company or any of its Restricted Subsidiaries in the ordinary
course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary
of the Company) that is an Affiliate of the Company solely because the
Company owns, directly or through a Restricted Subsidiary, an Equity
Interest in, or controls, such Person;
(4) payment of reasonable directors' fees to Persons who are not
otherwise Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock)
of the Company to Affiliates of the Company;
(6) Restricted Payments that do not violate Section 4.07 hereof;
(7) Permitted Payments to Sponsor;
(8) loans or advances to employees in the ordinary course of business
not to exceed $3.0 million in the aggregate at any one time outstanding;
and
(9) payments of cash bonuses to officers and employees approved by the
Board of Directors.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries 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.
Section 4.13 Business Activities.
65
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things reasonably necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or other
existence of each of the Guarantors, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any Guarantor; and
(2) the material rights (charter and statutory), licenses and
franchises of the Company and the Guarantors; provided, however, that the
Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of the
Guarantors, if the Board of Directors shall determine that the preservation
thereof, or the existence of such Guarantor, is no longer desirable in the
conduct of the business of the Company and the Guarantors, taken as a
whole, and that the loss thereof is not adverse in any material respect to
the Holders of the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will commence,
within the time frame set forth in the last paragraph of Section 4.15(b) hereof,
an offer (a "Change of Control Offer") to each Holder to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of that Holder's Notes
at a purchase price in cash equal to 101% of the aggregate principal amount of
Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if
any, on the Notes repurchased 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 (the "Change of Control Payment"). Within ten days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry transfer, to the Paying Agent at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
66
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and
(7) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof.
The Company will 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 the
repurchase of the Notes as a result of a Change in Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of Section 3.09 hereof or this Section 4.15, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under Section 3.09 hereof or this Section 4.15 by
virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent
lawful:
(1) accept for payment all Notes or portions of Notes 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 of Notes or portions of Notes being purchased by the
Company.
The Paying Agent will promptly mail to each Holder of Notes properly
tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
Prior to complying with any of the provisions of this Section 4.15, but in
any event within 90 days following a Change of Control, the Company will either
repay all outstanding Priority Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Priority Debt to permit the
repurchase of Notes required by this Section 4.15.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will 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 Section
3.09 hereof and this Section 4.15 and purchases all Notes properly tendered and
not withdrawn under the Change of Control Offer, or (2) notice of redemption has
been given pursuant to Section 3.07 hereof, unless and until there is a default
in payment of the applicable redemption price.
Section 4.16 Limitation on Issuances and Sales of Equity Interests in
Wholly-Owned Subsidiaries.
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The Company will not, and will not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Wholly-Owned Restricted Subsidiary of the Company to any
Person (other than the Company or a Wholly-Owned Subsidiary of the Company),
unless:
(1) such transfer, conveyance, sale, lease or other disposition is of
all the Equity Interests in such Wholly-Owned Restricted Subsidiary; and
(2) the Net Proceeds from such transfer, conveyance, sale, lease or
other disposition are applied in accordance with Section 4.10 hereof.
In addition, the Company will not permit any Wholly-Owned Restricted
Subsidiary of the Company to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to the Company or a Wholly-Owned Restricted
Subsidiary of the Company.
Section 4.17 Limitation on Issuances of Guarantees of Indebtedness.
The Company will not permit any of its Restricted Subsidiaries which is not
a Guarantor, directly or indirectly, to Guarantee or pledge any assets to secure
the payment of any other Indebtedness of the Company unless such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture to this
Indenture providing for the Guarantee of the payment of the Notes by such
Restricted Subsidiary, which Guarantee will be senior to or pari passu with such
Restricted Subsidiary's Guarantee of or pledge to secure such other
Indebtedness.
The Note Guarantee of a Guarantor will automatically and unconditionally be
released:
(1) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of
merger or consolidation) to a Person that is not (either before or after
giving effect to such transaction) the Company or a Restricted Subsidiary
of the Company, if the sale or other disposition does not violate Section
4.10 hereof;
(2) in connection with any sale or other disposition of all of the
Capital Stock of that Guarantor (or that Guarantor's direct or indirect
parent) to a Person that is not (either before or after giving effect to
such transaction) the Company or a Restricted Subsidiary of the Company, if
the sale or other disposition does not violate Section 4.10 hereof;
(3) if the Company designates any Restricted Subsidiary that is a
Guarantor to be an Unrestricted Subsidiary in accordance with the
applicable provisions of this Indenture; or
(4) upon legal defeasance or satisfaction and discharge of this
Indenture as provided in Section 8.02 and Article 12 hereof.
Section 4.18 Payments for Consent.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes 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
and is paid to all Holders of the Notes 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 4.19 Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or creates
another Domestic Restricted Subsidiary after the date of this Indenture, then
that newly acquired or created Domestic Restricted Subsidiary will become a
Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel
satisfactory to the Trustee within 30 business days of the date on which it was
acquired or created; provided that any Domestic Restricted Subsidiary that
constitutes an Immaterial Subsidiary need not become a Guarantor until such time
as it ceases to be an Immaterial Subsidiary. The form of such Note Guarantee is
attached as Exhibit E hereto.
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company 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 Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments under
Section 4.07 hereof or under one or more clauses of the definition of Permitted
Investments, as determined by the Company. That designation will 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.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of a resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company will be in
default of such covenant. The Board of Directors of the Company may at any time
redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary of the
Company if that redesignation would not cause a Default; provided that such
designation will be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation will only be permitted if (1) such Indebtedness
is permitted under Section 4.09 hereof, calculated on a pro forma basis as if
such designation had occurred at the beginning of the four full fiscal quarter
reference period; and (2) no Default or Event of Default would be in existence
following such designation.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly: (i) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:
(1) either:
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(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment,
transfer, conveyance or other disposition has been made is a
corporation organized or existing under the laws of the United States,
any state of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the
obligations of the Company under the Notes, this Indenture, the
Registration Rights Agreement and the Security Documents pursuant to
agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default
exists; and
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, conveyance or other disposition has been made would,
on the date of such transaction after giving pro forma effect thereto and
any related financing transactions as if the same had occurred at the
beginning of the applicable four full fiscal quarter period:
(A) be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the Section 4.09(a) hereof; or
(B) have a Fixed Charge Coverage Ratio that is greater than the
actual Fixed Charge Coverage Ratio of the Issuer immediately prior to
such transaction.
In addition, the Company will not, directly or indirectly, lease all or
substantially all of its and its Restricted Subsidiaries, taken as a whole,
properties or assets, in one or more related transactions, to any other Person.
This Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose
of reincorporating the Company in another jurisdiction; or
(2) any consolidation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among the
Company and its Restricted Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the properties or
assets of the Company in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor Person and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein; provided,
however, that the predecessor Company shall not be relieved from the obligation
to pay
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the principal of and interest on the Notes except in the case of a sale of all
of the Company's assets in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof.
ARTICLE 6
DEFAULTS 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
Liquidated Damages, if any, with respect to, the Notes;
(2) default in the payment when due (at maturity, upon redemption or
otherwise) of the principal of, or premium, if any, on, the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Sections 4.15 or 5.01 hereof;
(4) failure by the Company or any of its Restricted Subsidiaries for
60 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with any of the other agreements in this
Indenture or any of the Security Documents;
(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 Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now
exists, or is created after the date of this Indenture, if that default:
(A) is caused by a failure to pay the principal of such
Indebtedness at the final Stated Maturity of such Indebtedness (a
"Payment Default"); or
(B) results in the acceleration of such Indebtedness prior to its
express 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 Company or any of its Restricted Subsidiaries to
pay final judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $20.0 million (net of any amount covered by
insurance of a reputable and creditworthy insurer that has not contested
coverage or reserved rights with respect to the underlying claim), which
judgments are not paid, discharged or stayed for a period of 60 days;
(7) the occurrence of any of the following:
(A) except as permitted by this Indenture, any Security Document
ceases for any reason to be fully enforceable; provided, that it will
not be an Event of Default under this clause (7)(a) if the sole result
of the failure of one or more Security Documents to be fully
enforceable is that any Parity Lien purported to be granted under such
Security
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Documents on Collateral, individually or in the aggregate, having an
estimated good faith value of not more than $10.0 million ceases to be
an enforceable and perfected Lien, subject as to priority only to
Permitted Prior Liens;
(B) any Parity Lien purported to be granted under any Security
Document on Collateral, individually or in the aggregate, having an
estimated good faith value in excess of $10.0 million ceases to be an
enforceable and perfected Lien, subject as to priority only to
Permitted Prior Liens; or
(C) the Company or any other Pledgor, or any Person acting on
behalf of any of them, denies or disaffirms, in writing, any
obligation of the Company or any other Pledgor set forth in or arising
under any Security Document;
(8) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a custodian of it or for all
or substantially all of its property,
(D) makes a general assignment for the benefit of its creditors,
or
(E) admits in writing its inability to pay its debts as they
become due;
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary or for all or substantially all of
the property of the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a Significant
Subsidiary; or
(C) orders the liquidation of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days;
(10) except as permitted by this Indenture, any Note Guarantee is held
in any judicial proceeding to be unenforceable or invalid or ceases for any
reason to be in full force and effect,
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or any Guarantor, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Note Guarantee.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (8) or (9) of
Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of
the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will 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 aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately.
Upon any such declaration, the Notes shall become due and payable
immediately.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of all of the
Holders, rescind an acceleration and its consequences, if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium or Liquidated Damages, if
any, that has become due solely because of the acceleration) have been cured or
waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium and Liquidated
Damages, if any, and 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 of a Note 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. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium and Liquidated Damages, if any, or interest
on, the Notes (including in connection with an offer to purchase); provided,
however, that with respect to a Default or Event of Default, other than a
continuing Default or Event of Default in the payment of the principal of,
premium and Liquidated Damages, if any, or interest on, the Notes (including in
connection with an offer to purchase), the Holders of a majority in aggregate
principal amount of the then outstanding Notes may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
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Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(1) such Holder gives to the Trustee written notice that an Event of
Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) during such 60-day period, Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Liquidated
Damages, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), 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 such Holder;
provided that a Holder shall not have the right to institute any such suit for
the enforcement of payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the Lien of this
Indenture upon any property subject to such Lien.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest 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 is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. 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, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes 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 a
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,
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 of a Note pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE AND COLLATERAL TRUSTEE
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Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee will
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee will examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) the Trustee will 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; and
(3) the Trustee will 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 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or
risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
(g) In no event shall the Trustee be personally liable (i) for special,
consequential or punitive damages, (ii) for the acts or omissions of its
nominees, correspondents, clearing agencies or securities depositories, (iii)
for the acts or omissions of brokers or dealers, and (iv) for any losses due to
forces beyond the control of the Trustee, including without limitation strikes,
work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services. The
Trustee
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shall have no responsibility for the accuracy of any information provided to the
Holders or any other person that has been obtained from, or provided to the
Trustee by, any other entity.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely in good faith upon any document
reasonably believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will 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. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and will not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to take
in good faith that it believes to be authorized or within the rights or powers
conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company will be sufficient if signed by an
Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders have offered to the Trustee reasonable indemnity
or security against the losses, liabilities and expenses that might be incurred
by it in compliance with such request or direction.
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 Company or any Affiliate of the
Company 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 and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will 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 Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
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If a Default or Event of Default occurs and is continuing and to the actual
knowledge of the Trustee, the Trustee will mail to Holders of Notes a notice of
the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium or
Liquidated Damages, if any, or interest on, any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee will mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also will comply
with TIA Section 313(b)(2). The Trustee will also transmit by mail all reports
as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes will be mailed by the Trustee to the Company and filed by the Trustee with
the SEC and each stock exchange on which the Notes are listed in accordance with
TIA Section 313(d). The Company will promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder as
shall be agreed upon in writing by the Company and the Trustee. The Trustee's
compensation will not be limited by any law on compensation of a trustee of an
express trust. The Company will reimburse the Trustee promptly upon request for
all reasonable out-of-pocket disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will
include the reasonable out-of-pocket fees, disbursements and expenses of the
Trustee's agents and counsel.
(b) The Company and the Guarantors will jointly and severally indemnify the
Trustee against any and all losses, liabilities, claims, actions, suits, costs
or expenses incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, including the reasonable
out-of-pocket costs and expenses of enforcing this Indenture against the Company
and the Guarantors (including this Section 7.07) and defending itself against
any claim (whether asserted by the Company, the Guarantors, any Holder or any
other Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence, willful misconduct or bad
faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not
relieve the Company or any of the Guarantors of their obligations hereunder. The
Company or such Guarantor will defend the claim and the Trustee will cooperate
in the defense. The Trustee may have separate counsel at its own expense (i)
unless the Company fails to assume the defense of such claim, (ii) if there is
an actual conflict of interests or (iii) if there is the potential for the
imposition of criminal liability, in which case the Company will pay the
reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld, conditioned or delayed.
(c) The obligations of the Company and the Guarantors under this Section
7.07 will survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee.
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(d) To secure the Company's and the Guarantors' payment obligations in this
Section 7.07, the Trustee will have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien will survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.
(e) When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor
Trustee will become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company at least 30 days in
advance. The Holders of a majority in aggregate principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(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 custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof.
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Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof will continue for the benefit of
the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act will be the successor Trustee, so
long as it is eligible to serve as Trustee under Section 7.10 hereof.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of
TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 7.12 Appointment
Each Holder agrees to the appointment of Trustee, as the initial trustee
for the benefit of Holders under this Indenture, and to the appointment of
Collateral Trustee as the initial collateral trustee, for the benefit of Holders
under the Collateral Trust Agreement. The Collateral Trustee may act as
collateral trustee, collateral agent or any similar title that the Collateral
Trustee deems necessary or convenient for the purpose of perfecting the security
interests in the Collateral. Each Holder authorizes the Trustee and Collateral
Trustee, as applicable, each in such capacity, through its agents or employees,
to execute and deliver any Note Documents and take such actions on its behalf
under the provisions of this Indenture, the Collateral Trust Agreement and the
other Note Documents and to exercise such powers and perform such duties as are
expressly delegated to such Trustee or Collateral Trustee, as applicable, by the
terms of this Indenture, the Collateral Trust Agreement and the other Note
Documents, together with such actions and powers as are reasonably incidental
thereto.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
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Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including the Note Guarantees), which will thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which will survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in
respect of the principal of, or interest or premium and Liquidated Damages,
if any, on, such Notes when such payments are due from the trust referred
to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes under Article
2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's and the Guarantors' obligations in connection
therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18,
4.19 and 4.20 hereof and clause (4) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
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 will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will 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 will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees will be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(5) hereof will
not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
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In order to exercise either Legal Defeasance or Covenant Defeasance under
either Section 8.02 or 8.03 hereof:
(1) the Company 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 will be
sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm, or firm of independent public accountants, to pay the
principal of, premium and Liquidated Damages, if any, and interest on, the
outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to such stated date for
payment or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Company
must deliver to the Trustee an Opinion of Counsel confirming that:
(A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has been a change in
the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to 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 8.03 hereof, the Company
must deliver to the Trustee an Opinion of Counsel confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to 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
and the granting of Liens in connection therewith) and the deposit will not
result in a breach or violation of, or constitute a default under, any
other instrument to which the Company or any Guarantor is a party or by
which the Company or any Guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance will 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 Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes over the other creditors of the Company
with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
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(7) the Company 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.
The Collateral will be released from the Lien securing the notes, as
provided under the Collateral Trust Agreement upon a Legal Defeasance or
Covenant Defeasance in accordance with the provisions in this Article 8.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, 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 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will 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 (including the Company acting as 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 Liquidated Damages, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company will 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 8.04 hereof 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
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), 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 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium or Liquidated
Damages, if any, or interest on, any Note and remaining unclaimed for two years
after such principal, premium or Liquidated Damages, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) will be discharged from such trust; and the Holder of such
Note will thereafter be permitted to look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, will
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
Company 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 will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
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If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, 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 Company's and the Guarantors' obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium or
Liquidated Damages, if any, or interest on, any Note following the reinstatement
of its obligations, the Company will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture or the Notes or the Note
Guarantees without the consent of any Holder of Note:
(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 Company's or a Guarantor's
obligations to the Holders of the Notes and Note Guarantees by a successor
to the Company or such Guarantor pursuant to Article 5 or Article 10
hereof;
(4) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder;
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Note Guarantees, the
Security Documents or the Notes to any provision of the "Description of
Notes" section of the Company's Offering Memorandum relating to the initial
offering of the Notes, to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a
provision of this Indenture, the Note Guarantees, the Security Documents or
the Notes;
(7) to provide for the issuance of Additional Notes in accordance with
the limitations set forth in this Indenture as of the date hereof; or
(8) to allow any Guarantor to execute a supplemental indenture and/or
a Note Guarantee with respect to the Notes, to add additional Guarantors or
release Guarantors from Note Guarantees, each in accordance with the terms
of this Indenture; or
(9) to make, complete or confirm any grant of Collateral permitted or
required by this Indenture or any of the Security Documents or any release
of Collateral that becomes effective as set forth in this Indenture or any
of the Security Documents.
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Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee will join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture (including, without limitation, Sections
3.09, 4.10 and 4.15 hereof) and the Notes and the Note Guarantees with the
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes (including, without limitation, Additional Notes, if
any) voting as a single class (including, without limitation, consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium or Liquidated Damages, if any, or interest on, the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture or the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes).
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee will
join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental Indenture.
It is not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company will mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, will not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes or the Note Guarantees. However,
without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
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(2) reduce the principal of or change the fixed maturity of any Note
or reduce the premium payable upon the redemption of any Note or change the
time at which any Note may be redeemed (except with respect to repurchases
required by Sections 4.10 and 4.15 hereof);
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal
of, or premium or Liquidated Damages, if any, or interest 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 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;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults, Events of Default or the rights of Holders of
Notes to receive payments of principal of, or interest or premium or
Liquidated Damages, if any, on, the Notes;
(7) waive a redemption payment payable with respect to any Note (other
than a payment required by Sections 4.10 or 4.15 hereof);
(8) release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture, except in accordance with the terms of this
Indenture; or
(9) make any change in the preceding amendment and waiver provisions.
In addition, any amendment to, or waiver of, the provisions of this
Indenture or any Security Document that has the effect of releasing all or
substantially all of the Collateral from the Liens securing the Notes will
require the consent of the Holders of at least 66-2/3% in aggregate principal
amount of the Notes then outstanding.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be set
forth in a amended or supplemental indenture that complies with the TIA as then
in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder of a Note 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 of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee
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shall, upon receipt of an Authentication Order, authenticate new Notes that
reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
of the Company approves it. In executing any amended or supplemental indenture,
the Trustee will be entitled to receive and (subject to Section 7.01 hereof)
will be fully protected in relying upon, in addition to the documents required
by Section 13.04 hereof, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
the execution and delivery of such amendment or supplement have been met.
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01 Equal and Ratable Sharing of Collateral by Holders of Parity Lien
Debt.
Notwithstanding: (1) anything to the contrary contained in the Security
Documents; (2) the time of incurrence of any Series of Parity Lien Debt; (3) the
order or method of attachment or perfection of any Liens securing any Series of
Parity Lien Debt; (4) the time or order of filing or recording of financing
statements, mortgages or other documents filed or recorded to perfect any Lien
upon any Collateral; (5) the time of taking possession or control over any
Collateral; (6) that any Parity Lien may not have been perfected or may be or
have become subordinated, by equitable subordination or otherwise, to any other
Lien; or (7) the rules for determining priority under any law governing relative
priorities of Liens:
(a) all Parity Liens granted at any time by the Company or any other
Pledgor shall secure, equally and ratably, all present and future Parity Lien
Obligations; and
(b) all proceeds of all Parity Liens granted at any time by the Company or
any other Pledgor shall be allocated and distributed equally and ratably on
account of the Parity Lien Debt and other Parity Lien Obligations.
The foregoing provision is intended for the benefit of, and shall be
enforceable as a third party beneficiary by, each present and future holder of
Parity Lien Obligations, each present and future Parity Lien Representative and
the Collateral Trustee as holder of Parity Liens. The Parity Lien Representative
of each future Series of Parity Lien Debt shall be required to deliver a Lien
Sharing and Priority Confirmation to the Collateral Trustee and the Trustee at
the time of incurrence of such Series of Parity Lien Debt.
Section 10.02 Ranking of Parity Liens.
Notwithstanding: (1) anything to the contrary contained in the Security
Documents; (2) the time of incurrence of any Series of Secured Debt; (3) the
order or method of attachment or perfection of any Liens securing any Series of
Secured Debt; (4) the time or order of filing or recording of financing
statements, mortgages or other documents filed or recorded to perfect any Lien
upon any Collateral; (5)
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the time of taking possession or control over any Collateral; (6) that any
Priority Lien may not have been perfected or may be or have become subordinated,
by equitable subordination or otherwise, to any other Lien; or (7) the rules for
determining priority under any law governing relative priorities of Liens, all
Parity Liens at any time granted by the Company or any other Pledgor shall be
subject and subordinate to all Priority Liens securing (i) Priority Lien Debt up
to the Priority Lien Cap and (ii) all other Obligations in respect of Priority
Lien Debt.
The foregoing provision is intended for the benefit of, and shall be
enforceable as a third party beneficiary by, each present and future holder of
Priority Lien Obligations, each present and future Priority Lien Representative
and the Collateral Trustee as holder of the Priority Liens. No other Person
shall be entitled to rely on, have the benefit of or enforce those provisions.
The Parity Lien Representative of each future Series of Parity Lien Debt shall
be required to deliver a Lien Sharing and Priority Confirmation to the
Collateral Trustee and each Priority Lien Representative at the time of
incurrence of such Series of Parity Lien Debt.
In addition, the foregoing provision is intended solely to set forth the
relative ranking, as Liens, of the Liens securing Parity Lien Debt as against
the Priority Liens. Neither the Notes, nor any other Parity Lien Obligations nor
the exercise or enforcement of any right or remedy for the payment or collection
thereof are intended to be, or shall ever be by reason of the foregoing
provision, in any respect subordinated, deferred, postponed, restricted or
prejudiced.
Section 10.03 Relative Rights.
Nothing in the Note Documents shall:
(a) impair, as between the Company and the Holders of the Notes, the
obligation of the Company to pay principal of, premium and interest and
Liquidated Damages, if any, on the Notes in accordance with their terms or any
other obligation of the Company or any other Pledgor;
(b) affect the relative rights of Holders of Notes as against any other
creditors of the Company or any other Pledgor (other than holders of Priority
Liens, Permitted Prior Liens or other Parity Liens);
(c) restrict the right of any Holder of Notes to xxx for payments that are
then due and owing (but not enforce any judgment in respect thereof against any
Collateral to the extent specifically prohibited under the Collateral Trust
Agreement);
(d) restrict or prevent any Holder of Notes, or any other Parity Lien
Obligations, the Collateral Trustee or any Parity Lien Representative from
exercising any of its rights or remedies upon a Default or Event of Default not
specifically restricted or prohibited by the Collateral Trust Agreement; or
(e) restrict or prevent any Holder of Notes, or any other Parity Lien
Obligations, the Collateral Trustee or any Parity Lien Representative from
taking any lawful action in an insolvency or liquidation proceeding not
specifically restricted or prohibited by the Collateral Trust Agreement.
Section 10.04 Compliance with Trust Indenture Act.
The Company shall comply with the provisions of TIA Section 314.
To the extent applicable, the Company shall cause TIA Section 313(b),
relating to reports, and TIA Section 314(d), relating to the release of property
or securities subject to the Lien of the Security Documents, to be complied
with. Any certificate or opinion required by TIA Section 314(d) may be made by
an Officer of the
88
Company except in cases where TIA Section 314(d) requires that such certificate
or opinion be made by an independent Person, which Person shall be an
independent engineer, appraiser or other expert selected by or reasonably
satisfactory to the Trustee. Notwithstanding anything to the contrary in this
paragraph, the Company shall not be required to comply with all or any portion
of TIA Section 314(d) if it determines, in good faith based on advice of
counsel, that under the terms of TIA Section 314(d) and/or any interpretation or
guidance as to the meaning thereof of the SEC and its staff, including "no
action" letters or exemptive orders, all or any portion of TIA Section 314(d) is
inapplicable to one or a series of released Collateral.
Section 10.05 Further Assurances; Insurance.
(a) The Company and each of the other Pledgors shall do or cause to be done
all acts and things that may be required, or that the Collateral Trustee from
time to time may reasonably request, to assure and confirm that the Collateral
Trustee holds, for the benefit of the holders of Secured Obligations, duly
created and enforceable and perfected Liens upon the Collateral (including any
property or assets that are acquired or otherwise become Collateral after the
Notes are issued), in each case, as contemplated by, and with the Lien priority
required under, the Secured Debt Documents.
Upon the reasonable request of the Collateral Trustee or any Secured Debt
Representative at any time and from time to time, the Company and each of the
other Pledgors shall promptly execute, acknowledge and deliver such Security
Documents, instruments, certificates, notices and other documents, and take such
other actions as shall be reasonably required, or that the Collateral Trustee
may reasonably request, to create, perfect, protect, assure or enforce the Liens
and benefits intended to be conferred, in each case as contemplated by the
Secured Debt Documents for the benefit of the holders of Secured Obligations.
(b) At any time when no Priority Lien Documents are in effect, the Company
and the other Pledgors shall:
(1) keep their properties adequately insured at all times by
financially sound and reputable insurers;
(2) maintain such other insurance, to such extent and against such
risks (and with such deductibles, retentions and exclusions), including
fire and other risks insured against by extended coverage and coverage for
acts of terrorism, as is customary with companies in the same or similar
businesses operating in the same or similar locations, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by them;
(3) maintain such other insurance as may be required by law;
(4) maintain title insurance on all real property Collateral insuring
the Collateral Trustee's Lien on that property, subject only to Permitted
Prior Liens and other exceptions to title reasonably approved by the
Collateral Trustee; provided that title insurance need only be maintained
on any particular parcel of real property if and to the extent title
insurance is maintained in respect of Priority Liens on that property; and
(5) maintain such other insurance as may be required by the Security
Documents.
(c) Upon the request of the Collateral Trustee, the Company and the other
Pledgors shall furnish to the Collateral Trustee full information as to their
property and liability insurance carriers. The Collateral Trustee, as agent for
the holders of Secured Obligations, as a class, shall be named as additional
89
insured on all insurance policies of the Company and the other Pledgors and the
Collateral Trustee shall be named as loss payee, with 30 days' notice of
cancellation or, if provided to the Company, notice of material change, on all
property and casualty insurance policies of the Company and the other Pledgors.
Section 10.06 Release of Liens in Respect of Notes.
The Collateral Trustee's Parity Liens upon the Collateral shall no longer
secure the Notes outstanding under this Indenture or any other Obligations under
this Indenture, and the right of the Holders of the Notes and such Obligations
to the benefits and proceeds of the Collateral Trustee's Parity Liens on the
Collateral shall terminate and be discharged:
(a) upon satisfaction and discharge of this Indenture as set forth under
Article 12 hereof;
(b) upon a Legal Defeasance or Covenant Defeasance of the Notes as set
forth under Article 8 hereof;
(c) upon payment in full and discharge of all Notes outstanding under this
Indenture and all Obligations that are outstanding, due and payable under this
Indenture at the time the Notes are paid in full and discharged; or
(d) in whole or in part, with the consent of the Holders of the requisite
percentage of Notes in accordance with Article 9 hereof.
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium and Liquidated Damages, if any, and
interest on, the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof
90
or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Note Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
Section 11.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of such
Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 11.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 11.01 hereof, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit E hereto will be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section
11.01 hereof will remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
91
If an Officer whose signature is on this Indenture or on the Note Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Note Guarantee set forth in this
Indenture on behalf of the Guarantors.
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 11.05 hereof, no Guarantor may sell
or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
(1) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(2) either:
(A) subject to Section 11.05 hereof, the Person acquiring the
property in any such sale or disposition or the Person formed by or
surviving any such consolidation or merger unconditionally assumes all
the obligations of that Guarantor under this Indenture, its Note
Guarantee and the Registration Rights Agreement on the terms set forth
herein or therein, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee; or
(B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this
Indenture, including without limitation, Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person will succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses
2(a) and (b) above, nothing contained in this Indenture or in any of the Notes
will prevent any consolidation or merger of a Guarantor with or into the Company
or another Guarantor, or will prevent any sale or conveyance of the property of
a Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
Section 11.05 Releases.
(a) In the event of any sale or other disposition of all or substantially
all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Guarantor, in each case to a Person that is not (either before or after giving
effect to
92
such transactions) the Company or a Restricted Subsidiary of the Company, then
such Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the Capital Stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) will be
released and relieved of any obligations under its Note Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of this Indenture, including without limitation
Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Section 4.10 hereof, the Trustee will
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.
(b) Upon designation of any Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture, such Guarantor will be released and
relieved of any obligations under its Note Guarantee. The Trustee will execute
any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee.
(c) Upon Legal Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 12
hereof, each Guarantor will be released and relieved of any obligations under
its Note Guarantee. The Trustee will execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under its
Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee as
provided in this Section 11.05 will remain liable for the full amount of
principal of and interest and premium and Liquidated Damages, if any, on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 11.
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as
to all Notes issued hereunder, when:
(1) either:
(A) all Notes that have been authenticated, except lost, stolen
or destroyed Notes that have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust and thereafter
repaid to the Company, have been delivered to the Trustee for
cancellation; or
(B) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable
within one year and the Company or any Guarantor 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 thereof, in such
amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness
on the Notes not delivered to the Trustee for cancellation for
principal,
93
premium and Liquidated Damages, if any, and accrued interest to the
date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on
the date of such deposit as a result of the Company's failure to comply
with Section 4.15 hereof and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which
the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid all
sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the
Notes at maturity or on the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money
has been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof will
survive. In addition, nothing in this Section 12.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with
the Trustee pursuant to Section 12.01 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium and Liquidated Damages, if any)
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
If the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 12.01 hereof by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and any Guarantor's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.01 hereof; provided that if the Company has made any payment of
principal of, premium or Liquidated Damages, if any, or interest on, any Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
94
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties will control.
Section 13.02 Notices.
Any notice or communication by the Company, any Guarantor or the Trustee to
the others is duly given if in writing and delivered in Person or by first class
mail (registered or certified, return receipt requested), facsimile transmission
or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company and/or any Guarantor:
Builders FirstSource Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
One Xxxxxx Xxxxxx, 0xx Xxxxx
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication will also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect
its sufficiency with respect to other Holders.
95
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it will mail a
copy to the Trustee and each Agent at the same time.
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 13.05 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 a certificate provided
pursuant to TIA Section 314(a)(4)) must comply with the provisions of TIA
Section 314(e) and must include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
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No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Note Guarantees, the Note Documents or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. The waiver may
not be effective to waive liabilities under the federal securities laws.
Section 13.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind its
successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 11.05 hereof.
Section 13.11 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section 13.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy will be an original, but all of them together represent the same agreement.
Section 13.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and will in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
97
SIGNATURES
BUILDERS FIRSTSOURCE, INC.,
a Delaware Corporation
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - NORTHEAST GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - TEXAS GENPAR,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - MBS, LLC,
a Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President and Secretary
BUILDERS FIRSTSOURCE - TEXAS GROUP,
L.P., a Texas limited partnership, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
(Signature page to Indenture)
BFS TEXAS, LLC, a Delaware limited
liability company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SOUTH TEXAS,
L.P., a Texas limited partnership as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - TEXAS INSTALLED
SALES, L.P., a Texas limited
partnership, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BFS IP, LLC, a Delaware limited
liability company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - INTELLECTUAL
PROPERTY, L.P., a Texas limited
partnership, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
(Signature page to Indenture)
BUILDERS FIRSTSOURCE HOLDINGS, INC., a
Delaware corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - DALLAS, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - FLORIDA, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - FLORIDA DESIGN
CENTER, LLC, a Delaware limited
liability company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - OHIO VALLEY, LLC,
a Delaware limited liability company,
as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
(Signature page to Indenture)
BFS, LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - ATLANTIC GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE OF NASHVILLE, INC.,
a Tennessee corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SOUTHEAST GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SNC, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
(Signature page to Indenture)
CCWP, INC., a South Carolina close
corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - RALEIGH, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - COLORADO GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - COLORADO, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE FINANCING, INC., a
Delaware corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
(Signature page to Indenture)
WILMINGTON TRUST COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
(Signature page to Indenture)
[Face of Note]
================================================================================
CUSIP/CINS ____________
Second Priority Senior Secured Floating Rate Notes due 2012
No. ___ $____________
[NAME OF COMPANY]
promises to pay to [______________] or registered assigns,
the principal sum of _________________________________________________ DOLLARS
on February 15, 2012.
Interest Payment Dates: February 15, May 15, August 15 and November 15
Record Dates: February 1, May 1, August 1 and November 1
Dated: _________________
[NAME OF COMPANY]
By:
------------------------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
[TRUSTEE],
as Trustee
By:
------------------------------------
Authorized Signatory
================================================================================
A1-1
[Back of Note]
Second Priority Senior Secured Floating Rate Notes due 2012
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE
A1-2
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF
TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. [Name of Company], a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
at a rate equal to the LIBOR Rate plus 4.25% from February 11, 2005 until
maturity and shall pay the Liquidated Damages, if any, payable pursuant to
Section 4 of the Registration Rights Agreement referred to below. The LIBOR
Rate will be reset quarterly. The LIBOR Rate for the first quarterly period
ending on _________ will be ___%, and the applicable interest rate for the
first quarterly period ending on _________ will be ___% per annum. The
Company will pay interest and Liquidated Damages, if any, quarterly in
arrears on February 15, May 15, August 15 and November 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be __________. The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a
rate that is 1% per annum in excess of the rate then in effect to the
extent lawful; it will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons
who are registered Holders of Notes at the close of business on the
February 1, May 1, August 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on
or before
A1-3
such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Notes will be payable as
to principal, premium and Liquidated Damages, if any, and interest at the
office or agency of the Company maintained for such purpose, or, at the
option of the Company, payment of interest and Liquidated Damages, if any,
may be made by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer of
immediately available funds will be required with respect to principal of
and interest, premium and Liquidated Damages, if any, on all Global Notes
and all other Notes the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be 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.
(3) PAYING AGENT AND REGISTRAR. Initially, _____________, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE AND SECURITY DOCUMENTS. The Company issued the Notes
under an Indenture dated as of February 11, 2005 (the "Indenture") among
the Company, the Guarantors 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 TIA. THE NOTES ARE SUBJECT TO ALL SUCH TERMS, AND HOLDERS
ARE REFERRED TO THE INDENTURE AND SUCH ACT FOR A STATEMENT OF SUCH TERMS.
TO THE EXTENT ANY PROVISION OF THIS NOTE CONFLICTS WITH THE EXPRESS
PROVISIONS OF THE INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL GOVERN
AND BE CONTROLLING. The Notes are secured obligations of the Company. The
Notes are secured by a second priority lien on substantially all of the
Company's assets pursuant to the Security Documents referred to in the
Indenture. In addition, until an initial public offering of the Company's
common stock, the Notes are secured by the pledge by JLL Building Products,
LLC of all of the Company's capital stock that it owns, on a second
priority basis, until an initial public offering of the Company's common
stock pursuant to the Pledge Agreement as defined in the Indenture. The
Indenture does not limit the aggregate principal amount of Notes that may
be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this
Paragraph 5, the Company will not have the option to redeem the Notes prior
to February 15, 2007. On or after February 15, 2007, the Company may redeem
all or a part of the Notes upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated
Damages, if any, on the Notes redeemed, to the applicable redemption date,
if redeemed during the twelve-month period beginning on February 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
---- ----------
2007 .................. 102.000%
2008 .................. 101.000%
2009 and thereafter ... 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
A1-4
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to February 15, 2007, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of
Notes issued under the Indenture (including any additional Notes issued
after the date of the Indenture) at a redemption price of 100% of the
principal amount thereof, plus a premium equal to 100% of the principal
amount of the Notes multiplied by the sum of the LIBOR Rate in effect on
the date of such redemption notice plus 4.25%, plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date, with the
net cash proceeds of one or more Equity Offerings; provided that at least
65% of the aggregate principal amount of Notes originally issued under the
Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption and
the redemption occurs within 90 days of the date of the closing of such
Equity Offering.
(c) Notwithstanding the provisions of subparagraphs (a) or (b) of
this Paragraph 5, at any time prior to February 15, 2007, the Company may
also redeem all or a part of the Notes, upon not less than 30 nor more than
60 days' prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to 100% of the principal
amount of Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid interest and Liquidated Damages, if any, to the date of redemption
(the "Redemption Date"), subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date.
(6) MANDATORY REDEMPTION.
The Company is not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will be required
to make an offer (a "Change of Control Offer") to each Holder to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of each
Holder's Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon 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 (the "Change of Control Payment"). Within 10 days
following any Change of Control, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.
(b) If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within five days of each date on which the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will
commence an offer to all Holders of Notes and all holders of Parity Lien
Debt containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets (an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Notes and such other Parity Lien
Debt that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date of purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and Parity Lien
Debt tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use such deficiency for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and
Parity Lien Debt tendered into such Asset Sale Offer
A1-5
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes
and such other Parity Lien Debt to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to purchase will receive
an Asset Sale Offer from the Company prior to any related purchase date and
may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption
date if the notice is issued in connection with a defeasance of the Notes
or a satisfaction or discharge of the Indenture. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 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 Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes
to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes or the Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class, and any existing
Default or Event or Default or compliance with any provision of the
Indenture or the Notes or the Note Guarantees may be waived with the
consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes including Additional Notes, if any, voting as a
single class. Without the consent of any Holder of a Note, the Indenture or
the Notes or the Note Guarantees may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the
assumption of the Company's or a Guarantor's obligations to Holders of the
Notes and Note Guarantees in case of a merger or consolidation or sale of
substantially all of the Company's or such Guarantor's assets, to make any
change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the
TIA, to conform the text of the Indenture, Security Documents or the Notes
to any provision of the "Description of Notes" section of the Company's
Offering Memorandum dated February 8, 2005, relating to the initial
offering of the Notes, to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a
provision of the Indenture, the Note Guarantees, the Security Documents or
the Notes; to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Indenture, or to allow any Guarantor
to execute a supplemental indenture to the Indenture and/or a Note
Guarantee with respect to the Notes, to add additional Guarantors or
release Xxxxxxxxxx
X0-0
from Note Guarantees, each in accordance with the terms of the Indenture,
or to make, complete or confirm any grant of Collateral permitted or
required by the Indenture or any of the Security Documents or any release
of Collateral that becomes effective as set forth in the Indenture or any
of the Security Documents.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on, or Liquidated Damages, if
any, with respect to, the Notes; (ii) default in the payment when due (at
maturity, upon redemption or otherwise) of the principal of, or premium, if
any, on, the Notes; (iii) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.15 or 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class to comply with any of the other
agreements in this Indenture or any of the Security Documents; (v) default
under one or more instruments evidencing or securing Indebtedness of the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) having an
outstanding principal amount of $20.0 million or more that has resulted in
the acceleration of the payment of such Indebtedness or the failure to pay
the principal of such Indebtedness at the final Stated Maturity of such
Indebtedness; (vi) certain final judgments for the payment of money in an
amount of $20.0 million or more that remain undischarged for a period of 60
days; (vii) the occurrence of (a) any Security Document ceasing to be
enforceable, with certain exceptions, (b) any Parity Lien, individually or
in the aggregate, having an estimated good faith value in excess of $10.0
million, ceasing to be an enforceable and perfected Lien, subject to
Permitted Prior Liens, (c) the Company or any other Pledgor denies or
disaffirms, in writing, any obligation of the Company or any other Pledgor
set forth in or arising under any Security Document; (viii) certain events
of bankruptcy or insolvency with respect to the Company 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 (ix) except as permitted by the Indenture, any
Note Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf denies or disaffirms its
obligations under such Guarantor's Note Guarantee. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes 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, all outstanding Notes will become due and payable
immediately 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 aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest or premium or
Liquidated Damages, if any,) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind an acceleration or waive any existing
Default or Event of Default and its consequences under the Indenture except
a continuing Default or Event of Default in the payment of interest or
premium or Liquidated Damages, if any, on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
A1-7
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any
Guarantor, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Indenture, the Note
Guarantees or the Note Documents or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes. The
waiver may not be effective to waive liabilities under federal securities
laws.
(15) AUTHENTICATION. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(16) 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 entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes will have all the rights set forth in the
Registration Rights Agreement dated as of February 11, 2005, among the
Company, the Guarantors and the other parties named on the signature pages
thereof or, in the case of Additional Notes, Holders of Restricted Global
Notes and Restricted Definitive Notes will have the rights set forth in one
or more registration rights agreements, if any, among the Company, the
Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use
CUSIP 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.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
[Name of Company]
[Address]
Attention: ______________
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
-----------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$_______________
Date: _______________
Your Signature:
-----------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: _____________________________________________
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount
Amount of decrease in Amount of increase in [at maturity] of this
Principal Amount Principal Amount Global Note following Signature of authorized
[at maturity] of [at maturity] of such decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- --------------------- --------------------- --------------------- -----------------------
* This schedule should be included only if the Note is issued in global form.
A1-11
[Face of Regulation S Temporary Global Note]
================================================================================
CUSIP/CINS __________
Second Priority Senior Secured Floating Rate Notes due 2012
No. ___ $__________
[NAME OF COMPANY]
promises to pay to ____________ or registered assigns,
the principal sum of __________________________________________________ DOLLARS
on February 15, 2012.
Interest Payment Dates: February 15, May 15, August 15 and November 15
Record Dates: February 1, May 1, August 1 and November 1
Dated: ____________
[NAME OF COMPANY]
By:
------------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
[TRUSTEE],
as Trustee
By:
---------------------------------
Authorized Signatory
================================================================================
A2-1
[Back of Regulation S Temporary Global Note]
Second Priority Senior Secured Floating Rate Notes due 2012
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE
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SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Capitalized terms used herein have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
(1) INTEREST. [Name of Company], a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
at a rate equal to the LIBOR Rate plus 4.25% from February 11, 2005 until
maturity and shall pay the Liquidated Damages, if any, payable pursuant to
Section 4 of the Registration Rights Agreement referred to below. The LIBOR
Rate will be reset quarterly. The LIBOR Rate for the first quarterly period
ending on _________ will be ___%, and the applicable interest rate for the
first quarterly period ending on _________ will be ___% per annum. The
Company will pay interest and Liquidated Damages, if any, quarterly in
arrears on February 15, May 15, August 15 and November 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be __________. The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a
rate that is 1% per annum in excess of the rate then in effect to the
extent lawful; it will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any
A2-3
applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged for one or
more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in
full, this Regulation S Temporary Global Note shall in all other respects
be entitled to the same benefits as other Notes under the Indenture.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons
who are registered Holders of Notes at the close of business on the
February 1, May 1, August 1 or November 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 will be payable
as to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose, or, at the
option of the Company, payment of interest and Liquidated Damages, if any,
may be made by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer of
immediately available funds will be required with respect to principal of
and interest, premium and Liquidated Damages, if any, on all Global Notes
and all other Notes the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be 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.
(3) PAYING AGENT AND REGISTRAR. Initially, _____________, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE AND SECURITY DOCUMENTS. The Company issued the Notes
under an Indenture dated as of February 11, 2005 (the "Indenture") among
the Company, the Guarantors 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 TIA. THE NOTES ARE SUBJECT TO ALL SUCH TERMS, AND HOLDERS
ARE REFERRED TO THE INDENTURE AND SUCH ACT FOR A STATEMENT OF SUCH TERMS.
TO THE EXTENT ANY PROVISION OF THIS NOTE CONFLICTS WITH THE EXPRESS
PROVISIONS OF THE INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL GOVERN
AND BE CONTROLLING. The Notes are secured obligations of the Company. The
Notes are secured by a second priority lien on substantially all of the
Company's assets pursuant to the Security Documents referred to in the
Indenture. In addition, until an initial public offering of the Company's
common stock, the Notes are secured by the pledge by JLL Building Products,
LLC of all of the Company's capital stock that it owns, on a second
priority basis, pursuant to the Pledge Agreement as defined in the
Indenture. The Indenture does not limit the aggregate principal amount of
Notes that may be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this
Paragraph 5, the Company will not have the option to redeem the Notes prior
to February 15, 2007. On or after February 15, 2007, the Company may redeem
all or a part of the Notes upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated
Damages, if any, on the Notes
A2-4
redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on February 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
---- ----------
2007.................. 102.000%
2008.................. 101.000%
2009 and thereafter... 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to February 15, 2007, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of
Notes issued under the Indenture (including any additional Notes issued
after the date of the Indenture) at a redemption price of 100% of the
principal amount thereof, plus a premium equal to 100% of the principal
amount of the Notes multiplied by the sum of the LIBOR Rate in effect on
the date of such redemption notice plus 4.25%, plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date, with the
net cash proceeds of one or more Equity Offerings; provided that at least
65% of the aggregate principal amount of Notes originally issued under the
Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption and
the redemption occurs within 90 days of the date of the closing of such
Equity Offering.
(c) Notwithstanding the provisions of subparagraphs (a) or (b) of
this Paragraph 5, at any time prior to February 15, 2007, the Company may
also redeem all or a part of the Notes, upon not less than 30 nor more than
60 days' prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to 100% of the principal
amount of Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid interest and Liquidated Damages, if any, to the date of redemption
(the "Redemption Date"), subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date.
(6) MANDATORY REDEMPTION.
The Company is not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will be required
to make an offer (a "Change of Control Offer") to each Holder to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of each
Holder's Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon 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 (the "Change of Control Payment"). Within 10 days
following any Change of Control, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.
A2-5
(b) If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within five days of each date on which the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will
commence an offer to all Holders of Notes and all holders of Parity Lien
Debt containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets (an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Notes and such other Parity Lien
Debt that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date of purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and Parity Lien
Debt tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use such deficiency for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and
Parity Lien Debt tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and such other Parity
Lien Debt to be purchased on a pro rata basis. Holders of Notes that are
the subject of an offer to purchase will receive an Asset Sale Offer from
the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption
date if the notice is issued in connection with a defeasance of the Notes
or a satisfaction or discharge of the Indenture. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 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 Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes
to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes or the Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class, and any existing
Default or Event or Default or compliance with any provision of the
Indenture or the Notes or the Note Guarantees may be waived with the
consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes including Additional Notes, if any, voting as a
single class. Without the consent of any Holder of a Note, the Indenture or
the Notes or the Note Guarantees may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the
assumption
A2-6
of the Company's or a Guarantor's obligations to Holders of the Notes and
Note Guarantees in case of a merger or consolidation or sale of
substantially all of the Company's or such Guarantor's assets, to make any
change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the
TIA, to conform the text of the Indenture, Security Documents or the Notes
to any provision of the "Description of Notes" section of the Company's
Offering Memorandum dated February 8, 2005, relating to the initial
offering of the Notes, to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a
provision of the Indenture, the Note Guarantees, the Security Documents or
the Notes; to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Indenture, or to allow any Guarantor
to execute a supplemental indenture to the Indenture and/or a Note
Guarantee with respect to the Notes, to add additional Guarantors or
release Guarantors from Note Guarantees, each in accordance with the terms
of the Indenture, or to make, complete or confirm any grant of Collateral
permitted or required by the Indenture or any of the Security Documents or
any release of Collateral that becomes effective as set forth in the
Indenture or any of the Security Documents.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on, or Liquidated Damages, if
any, with respect to, the Notes; (ii) default in the payment when due (at
maturity, upon redemption or otherwise) of the principal of, or premium, if
any, on, the Notes; (iii) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.15 or 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class to comply with any of the other
agreements in this Indenture or any of the Security Documents; (v) default
under one or more instruments evidencing or securing Indebtedness of the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) having an
outstanding principal amount of $20.0 million or more that has resulted in
the acceleration of the payment of such Indebtedness or the failure to pay
the principal of such Indebtedness at the final Stated Maturity of such
Indebtedness; (vi) certain final judgments for the payment of money in an
amount of $20.0 million or more that remain undischarged for a period of 60
days; (vii) the occurrence of (a) any Security Document ceasing to be
enforceable, with certain exceptions, (b) any Parity Lien, individually or
in the aggregate, having an estimated good faith value in excess of $10.0
million, ceasing to be an enforceable and perfected Lien, subject to
Permitted Prior Liens, (c) the Company or any other Pledgor denies or
disaffirms, in writing, any obligation of the Company or any other Pledgor
set forth in or arising under any Security Document; (viii) certain events
of bankruptcy or insolvency with respect to the Company 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 (ix) except as permitted by the Indenture, any
Note Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf denies or disaffirms its
obligations under such Guarantor's Note Guarantee. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes 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, all outstanding Notes will become due and payable
immediately 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 aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any
trust
A2-7
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest or premium or
Liquidated Damages, if any,) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind an acceleration or waive any existing
Default or Event of Default and its consequences under the Indenture except
a continuing Default or Event of Default in the payment of interest or
premium or Liquidated Damages, if any, on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any
Guarantor, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Indenture, the Note
Guarantees or the Note Documents or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes. The
waiver may not be effective to waive liabilities under federal securities
laws.
(15) AUTHENTICATION. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(16) 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 entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
of Notes under the Indenture, Holders of this Regulation S Temporary Global
Note and Restricted Definitive Notes will have all the rights set forth in
the Registration Rights Agreement dated as of February 11, 2005, among the
Company, the Guarantors and the other parties named on the signature pages
thereof or, in the case of Additional Notes, Holders of Restricted Global
Notes and Restricted Definitive Notes will have the rights set forth in one
or more registration rights agreements, if any, among the Company, the
Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use
CUSIP 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.
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(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
[Name of Company]
[Address]
Attention: ______________
A2-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
-----------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
---------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$________________
Date: _______________
Your Signature:
-----------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:_________________
Signature Guarantee*:
---------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or exchanges of a part of another
other Restricted Global Note for an interest in this Regulation S Temporary
Global Note, have been made:
Principal Amount
[at maturity] of
Amount of decrease Amount of increase in this Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
[at maturity] of [at maturity] of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ------------------- --------------------- ---------------- ------------------
A2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
[Company address block]
[Registrar address block]
Re: [fill in full title of securities]
Reference is hereby made to the Indenture, dated as of _________________
(the "Indenture"), [between/among] ____________________, as issuer (the
"Company"), [the Guarantors party thereto] and ____________________, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
[THE REGULATION S TEMPORARY GLOBAL NOTE,](903(B)(3)) THE REGULATION S
[PERMANENT] GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION
S. The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act [and/,] (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act [and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser)].(903(B)(2)) OR (3) Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S [Permanent] Global
B-1
Note[, the Regulation S Temporary Global Note](903(b)(3)) and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) [if such
Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000,] an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in compliance
with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Restricted Definitive Notes and in the Indenture and the
Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
B-2
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
---------------------
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
[Company address block]
[Registrar address block]
Re: [fill in full title of securities]
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of _________________
(the "Indenture"), [between/among] _______________________, as issuer (the
"Company"), [the Guarantors party thereto] and _________________, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the
C-1
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
[ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
------------------------------------
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
---------------------
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
[Company address block]
[Registrar address block]
Re: [fill in full title of securities]
Reference is hereby made to the Indenture, dated as of _________________
(the "Indenture"), [between/among] _____________________, as issuer (the
"Company"), [the guarantors party thereto] and ___________________, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and[, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $250,000,] an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
------------------------------------
[Insert Name of Accredited Investor]
By:
------------------------------------
Name:
Title:
Dated:
---------------------
D-2
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of February 11, 2005 (the "Indenture")
among Builders FirstSource, Inc, a Delware corporation (the "Company"), the
Guarantors party thereto and Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Trustee"), (a) the due and punctual payment of the
principal of, premium and Liquidated Damages, if any, and interest on, the
Notes, whether at maturity, by acceleration, redemption or otherwise, the due
and punctual payment of interest on overdue principal of and interest on the
Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Note Guarantee and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given
to them in the Indenture.
[Signatures on Following Page]
E-1
EXHIBIT E
BUILDERS FIRSTSOURCE - NORTHEAST GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - TEXAS GENPAR,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - MBS, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President and Secretary
BUILDERS FIRSTSOURCE - TEXAS GROUP,
L.P., a Texas limited partnership, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BFS TEXAS, LLC, a Delaware limited
liability company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
E-2
EXHIBIT E
BUILDERS FIRSTSOURCE - SOUTH TEXAS,
L.P., a Texas limited partnership, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - TEXAS INSTALLED
SALES, L.P., a Texas limited
partnership, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BFS IP, LLC, a Delaware limited
liability company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - INTELLECTUAL
PROPERTY, L.P., a Texas limited
partnership, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE HOLDINGS, INC., a
Delaware corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
E-3
EXHIBIT E
BUILDERS FIRSTSOURCE - DALLAS, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - FLORIDA, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - FLORIDA DESIGN
CENTER, LLC, a Delaware limited
liability company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - OHIO VALLEY, LLC,
a Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BFS, LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
E-4
EXHIBIT E
BUILDERS FIRSTSOURCE - ATLANTIC GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE OF NASHVILLE, INC.,
a Tennessee corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SOUTHEAST GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SNC, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
CCWP, INC., a South Carolina close
corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
E-5
EXHIBIT E
BUILDERS FIRSTSOURCE - RALEIGH, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - COLORADO GROUP,
LLC, a Delaware limited liability
company, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE - COLORADO, LLC, a
Delaware limited liability company, as
Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BUILDERS FIRSTSOURCE FINANCING, INC., a
Delaware corporation, as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
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EXHIBIT F
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 200__, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of ____________________ (or its permitted successor),
a [Delaware] corporation (the "Company"), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and ____________________, as
trustee under the Indenture referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of ___________, 200__ providing for the
issuance of Second Priority Senior Secured Floating Rate Notes due 2012 (the
"Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited
to Article 11 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ____________, 20__
[GUARANTEEING SUBSIDIARY]
By:
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Name:
Title:
[COMPANY]
By:
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Name:
Title:
[EXISTING GUARANTORS]
By:
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Name:
Title:
[TRUSTEE], as Trustee
By:
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Authorized Signatory
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