UNO RESTAURANTS, LLC, as Issuer, UNO RESTAURANT HOLDINGS CORPORATION, THE GUARANTORS NAMED HEREIN and U.S. BANK NATIONAL ASSOCIATION, as Trustee INDENTURE Dated as of [__________], 2010 15% Senior Subordinated Secured Notes due 20161
Exhibit
T3C.1
UNO
RESTAURANTS, LLC, as Issuer,
UNO
RESTAURANT HOLDINGS CORPORATION,
THE
GUARANTORS NAMED HEREIN
and
U.S. BANK
NATIONAL ASSOCIATION, as Trustee
______________
Dated as
of [__________], 2010
______________
15%
Senior Subordinated Secured Notes due
20161
____________________________
1
Maturity date to be one day less than six months after the fifth anniversary of
the initial issuance of Notes and semiannual interest payment dates to be at
least one day before the six and 12-month semiannual dates.
CROSS REFERENCE
TABLE
|
TIA
Section
|
Section
|
|
|
310(a)(1)
|
7.10
|
|
|
(a)(2)
|
7.10
|
|
|
(a)(3)
|
N.A.
|
|
|
(a)(4)
|
N.A.
|
|
|
(a)(5)
|
7.10
|
|
|
(b)
|
7.03,
7.08, 7.10
|
|
|
(c)
|
N.A.
|
|
|
311(a)
|
7.11
|
|
|
(b)
|
7.11
|
|
|
(c)
|
N.A.
|
|
|
312(a)
|
2.06
|
|
|
(b)
|
13.03
|
|
|
(c)
|
13.03
|
|
|
313(a)
|
7.06
|
|
|
(b)(1)
|
7.06
|
|
|
(b)(2)
|
7.06
|
|
|
(c)
|
7.06
|
|
|
(d)
|
7.06
|
|
|
314(a)
|
4.03,
4.04
|
|
|
(b)
|
10.02
|
|
|
(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)
|
|
|
(b)
|
7.05
|
|
|
(c)
|
7.01(a)
|
|
|
(d)
|
7.01(c)
|
|
|
(e)
|
6.11
|
|
|
316(a)
(last sentence)
|
2.08
|
|
|
(a)(1)(A)
|
6.05
|
|
|
(a)(1)(B)
|
6.04
|
|
|
(a)(2)
|
N.A.
|
|
|
(b)
|
6.07
|
|
|
(c)
|
9.04
|
|
|
317(a)(1)
|
6.08
|
|
|
(a)(2)
|
6.09
|
|
|
(b)
|
2.03
|
|
|
318(a)
|
13.19
|
|
|
(b)
|
N.A.
|
|
|
(c)
|
13.19
|
_____________
N.A.
means Not Applicable
- i -
|
Note:
|
This
Cross-Reference Table shall not, for any purpose, be deemed to be a part
of this Indenture.
|
- ii -
|
|
TABLE OF
CONTENTS
|
Page
|
ARTICLE
ONE DEFINITIONS AND INCORPORATION BY
REFERENCE
|
1
|
|
|
Section 1.01.
|
Definitions.
|
1
|
|
Section 1.02.
|
Other Definitions.
|
31
|
|
Section 1.03.
|
Incorporation by Reference of Trust Indenture
Act.
|
32
|
|
Section 1.04.
|
Rules of Construction.
|
32
|
|
ARTICLE TWO THE
NOTES
|
33
|
|
|
Section 2.01.
|
Form and Dating.
|
33
|
|
Section 2.02.
|
Execution and
Authentication.
|
35
|
|
Section 2.03.
|
Methods of Receiving Payments on the
Notes.
|
36
|
|
Section 2.04.
|
Registrar and Paying Agent.
|
36
|
|
Section 2.05.
|
Paying Agent to Hold Money in
Trust.
|
37
|
|
Section 2.06.
|
Holder Lists.
|
37
|
|
Section 2.07.
|
Transfer and Exchange.
|
37
|
|
Section 2.08.
|
Replacement Notes.
|
51
|
|
Section 2.09.
|
Outstanding Notes.
|
51
|
|
Section 2.10.
|
Treasury Notes.
|
52
|
|
Section 2.11.
|
Temporary Notes.
|
52
|
|
Section 2.12.
|
Cancellation.
|
53
|
|
Section 2.13.
|
Defaulted Interest.
|
53
|
|
Section 2.14.
|
CUSIP Numbers.
|
53
|
|
Section 2.15.
|
[Intentionally Omitted].
|
53
|
|
Section 2.16.
|
Issuance of Additional
Notes.
|
54
|
|
Section 2.17.
|
Deposit of Moneys.
|
54
|
|
Section 2.18.
|
Computation of Interest.
|
54
|
|
ARTICLE
THREE REDEMPTION AND
PREPAYMENT
|
54
|
|
|
Section 3.01.
|
Notices to Trustee.
|
54
|
|
Section 3.02.
|
Selection of Notes to Be
Redeemed.
|
55
|
|
Section 3.03.
|
Notice of Redemption.
|
55
|
|
Section 3.04.
|
Effect of Notice of
Redemption.
|
56
|
|
Section 3.05.
|
Deposit of Redemption
Price.
|
56
|
|
Section 3.06.
|
Notes Redeemed in Part.
|
57
|
|
Section 3.07.
|
Optional Redemption.
|
57
|
|
Section 3.08.
|
Mandatory Redemption.
|
57
|
|
Section 3.09.
|
Application of Trust Money.
|
58
|
|
Section 3.10.
|
Company May Acquire Notes.
|
58
|
|
ARTICLE FOUR
COVENANTS
|
58
|
|
|
Section 4.01.
|
Payment of Notes.
|
58
|
|
Section 4.02.
|
Maintenance of Office or
Agency.
|
59
|
- iii
-
|
Section 4.03.
|
Reports.
|
60
|
|
Section 4.04.
|
Compliance Certificate.
|
60
|
|
Section 4.05.
|
Taxes.
|
61
|
|
Section 4.06.
|
Stay, Extension and Usury
Laws.
|
61
|
|
Section 4.07.
|
Incurrence of Indebtedness and Issuance of
Disqualified Stock.
|
61
|
|
Section 4.08.
|
Restricted Payments.
|
66
|
|
Section 4.09.
|
Transactions with
Affiliates.
|
70
|
|
Section 4.10.
|
Liens.
|
72
|
|
Section 4.11.
|
Asset Sales.
|
72
|
|
Section 4.12.
|
Issuances of Guarantees and Joinder to Security
Agreement by Restricted Subsidiaries.
|
78
|
|
Section 4.13.
|
Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
|
78
|
|
Section 4.14.
|
Sale and Leaseback
Transactions.
|
80
|
|
Section 4.15.
|
After-Acquired Property.
|
80
|
|
Section 4.16.
|
Events of Loss.
|
80
|
|
Section 4.17.
|
Impairment of Collateral.
|
83
|
|
Section 4.18.
|
Limitation on Parent.
|
83
|
|
Section 4.19.
|
Unrestricted Subsidiaries.
|
84
|
|
Section 4.20.
|
Payments for Consent.
|
85
|
|
Section 4.21.
|
Offer to Repurchase upon a Change of
Control.
|
85
|
|
Section 4.22.
|
Limitation on Capital
Expenditures.
|
88
|
|
Section 4.23.
|
Corporate Existence.
|
89
|
|
Section 4.24.
|
Calculation of Original Issue
Discount.
|
89
|
|
ARTICLE FIVE
SUCCESSORS
|
89
|
|
|
Section 5.01.
|
Consolidation, Merger or Sale of
Assets.
|
89
|
|
ARTICLE
SIX DEFAULTS AND
REMEDIES
|
92
|
|
|
Section 6.01.
|
Events of Default.
|
92
|
|
Section 6.02.
|
Acceleration.
|
94
|
|
Section 6.03.
|
Other Remedies.
|
96
|
|
Section 6.04.
|
Waiver of Past Defaults.
|
96
|
|
Section 6.05.
|
Control by Majority.
|
97
|
|
Section 6.06.
|
Limitation on Suits.
|
97
|
|
Section 6.07.
|
Rights of Holders of Notes to Receive
Payment.
|
97
|
|
Section 6.08.
|
Collection Suit by Trustee.
|
98
|
|
Section 6.09.
|
Trustee May File Proofs of
Claim.
|
98
|
|
Section 6.10.
|
Priorities.
|
98
|
|
Section 6.11.
|
Undertaking for Costs.
|
99
|
|
ARTICLE SEVEN
TRUSTEE
|
99
|
|
|
Section 7.01.
|
Duties of Trustee.
|
99
|
|
Section 7.02.
|
Certain Rights of Trustee.
|
100
|
- iv -
|
Section 7.03.
|
Individual Rights of
Trustee.
|
102
|
|
Section 7.04.
|
Trustee’s Disclaimer.
|
102
|
|
Section 7.05.
|
Notice of Default.
|
102
|
|
Section 7.06.
|
Reports by Trustee to Holders of the
Notes.
|
102
|
|
Section 7.07.
|
Compensation and Indemnity.
|
103
|
|
Section 7.08.
|
Replacement of Trustee.
|
104
|
|
Section 7.09.
|
Successor Trustee by Merger,
Etc.
|
105
|
|
Section 7.10.
|
Eligibility;
Disqualification.
|
105
|
|
Section 7.11.
|
Preferential Collection of Claims Against
Company.
|
105
|
|
ARTICLE
EIGHT DEFEASANCE AND COVENANT
DEFEASANCE
|
105
|
|
|
Section 8.01.
|
Option to Effect Legal Defeasance or Covenant
Defeasance.
|
105
|
|
Section 8.02.
|
Legal Defeasance and
Discharge.
|
105
|
|
Section 8.03.
|
Covenant Defeasance.
|
106
|
|
Section 8.04.
|
Conditions to Legal Defeasance or Covenant
Defeasance.
|
106
|
|
Section 8.05.
|
Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions.
|
108
|
|
Section 8.06.
|
Repayment to the Company.
|
108
|
|
Section 8.07.
|
Reinstatement.
|
109
|
|
ARTICLE
NINE AMENDMENT, SUPPLEMENT AND
WAIVER
|
109
|
|
|
Section 9.01.
|
Without Consent of Holders of
Notes.
|
109
|
|
Section 9.02.
|
With Consent of Holders of
Notes.
|
110
|
|
Section 9.03.
|
Compliance with TIA.
|
112
|
|
Section 9.04.
|
Revocation and Effect of
Consents.
|
112
|
|
Section 9.05.
|
Notation on or Exchange of
Notes.
|
113
|
|
Section 9.06.
|
Trustee to Sign Amendments,
Etc.
|
113
|
|
ARTICLE TEN
COLLATERAL
|
113
|
|
|
Section 10.01.
|
Security Documents.
|
113
|
|
Section 10.02.
|
Recording.
|
115
|
|
Section 10.03.
|
Possession of the
Collateral.
|
116
|
|
Section 10.04.
|
Release of Collateral.
|
117
|
|
Section 10.05.
|
Permitted Ordinary Course Activities with Respect
to Collateral.
|
118
|
|
Section 10.06.
|
Purchaser Protected.
|
119
|
|
Section 10.07.
|
Actions by the Trustee.
|
119
|
|
Section 10.08.
|
Withdrawal of Net Loss
Proceeds.
|
120
|
|
Section 10.09.
|
Withdrawal of Net Cash Proceeds to Fund a
Collateral Asset Sale Offer.
|
120
|
|
ARTICLE ELEVEN
GUARANTEES
|
121
|
|
|
Section 11.01.
|
Guarantee.
|
121
|
|
Section 11.02.
|
Limitation on Guarantor
Liability.
|
122
|
- v -
|
Section 11.03.
|
Execution and Delivery of
Guarantee.
|
123
|
|
Section 11.04.
|
Releases of Guarantors.
|
123
|
|
ARTICLE
TWELVE SATISFACTION AND
DISCHARGE
|
124
|
|
|
Section 12.01.
|
Satisfaction and Discharge.
|
124
|
|
Section 12.02.
|
Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions.
|
125
|
|
Section 12.03.
|
Repayment to the Company.
|
125
|
|
ARTICLE THIRTEEN
MISCELLANEOUS
|
125
|
|
|
Section 13.01.
|
No Adverse Interpretation of Other
Agreements.
|
125
|
|
Section 13.02.
|
Notices.
|
126
|
|
Section 13.03.
|
Communication by Holders of Notes with Other
Holders of Notes.
|
127
|
|
Section 13.04.
|
Certificate and Opinion as to Conditions
Precedent.
|
127
|
|
Section 13.05.
|
Statements Required in Certificate or
Opinion.
|
128
|
|
Section 13.06.
|
Rules by Trustee and
Agents.
|
129
|
|
Section 13.07.
|
No Personal Liability of Directors, Officers,
Employees and Stockholders.
|
129
|
|
Section 13.08.
|
Governing Law.
|
129
|
|
Section 13.09.
|
Consent to Jurisdiction.
|
129
|
|
Section 13.10.
|
[Intentionally Omitted].
|
129
|
|
Section 13.11.
|
Successors.
|
129
|
|
Section 13.12.
|
Severability.
|
130
|
|
Section 13.13.
|
Counterpart Originals.
|
130
|
|
Section 13.14.
|
Acts of Holders.
|
130
|
|
Section 13.15.
|
Benefit of Indenture.
|
132
|
|
Section 13.16.
|
Table of Contents, Headings,
Etc.
|
132
|
|
Section 13.17.
|
Trustee Not Fiduciary for Holders of Senior
Indebtedness.
|
132
|
|
Section 13.18.
|
Subordination Agreement.
|
132
|
|
Section 13.19.
|
Trust Indenture Act
Controls.
|
132
|
|
Section 13.20.
|
Legal Holidays.
|
133
|
|
Section 13.21.
|
Waiver of Jury Trial.
|
133
|
|
Exhibits:
|
|
|
Schedule
A
|
SUBSIDIARY
GUARANTORS
|
|
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
|
- vi -
|
Exhibit
E
|
FORM
OF GUARANTOR SUPPLEMENTAL INDENTURE
|
|
|
NOTE:
|
This
table of contents shall not, for any purpose, be deemed to be part of this
Indenture.
|
- vii
-
INDENTURE
(this “Indenture”), dated as
of [________], 2010, among Uno
Restaurants, LLC, a Delaware limited liability company (the “Company”), the
Company’s direct parent, Uno Restaurant Holdings Corporation, a Delaware
corporation (“Parent”), the
Guarantors (as herein defined) and U.S. Bank National Association, as trustee
(the “Trustee”).
The
Company and the Trustee agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders (as defined below) of the Notes (as
defined below):
ARTICLE
ONE
Definitions
and Incorporation by Reference1
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
shall be issued in a denomination equal to the outstanding principal amount at
maturity of the Notes sold in reliance on Rule 144A.
“Acquired Debt” means
Indebtedness of a Person (1) existing at the time such Person becomes a
Restricted Subsidiary or (2) assumed in connection with the acquisition of
assets from such Person, in each case, other than Indebtedness incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition, as the case may be. Acquired Debt shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Restricted Subsidiary, as the
case may be.
“Additional Notes”
means any PIK Notes (not to exceed an aggregate principal amount of $10.0 million) issued under
this Indenture on any Interest Payment Date in partial payment of the interest
accrued on any Notes that is due and payable on such Interest Payment Date and
any further Notes (not to exceed an aggregate principal amount of $5.0 million)
issued under this Indenture, in each case pursuant to Section 2.02(a). The
Initial Notes and any Additional Notes subsequently issued under this Indenture
shall be treated as a single class for all purposes under this Indenture,
including waivers, amendments, redemptions and offers to purchase.
“Advisory Services
Agreements” means the Advisory Services Agreement, dated as of the date
of this Indenture, among Parent, the Company and Twin Haven (or Affiliates
thereof) and the Advisory Services Agreement, dated as of the date of this
Indenture, among Parent, the Company and Coliseum (or Affiliates
thereof).
“Affiliate” means,
with respect to any specified Person: (1) any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with
________________
1 To
the extent applicable, financial definitions to be conformed to those in the
Credit Agreement.
- 1
-
such
specified Person; (2) any other Person that owns, directly or indirectly, 10% or
more of any class or series of such specified Person’s (or any of such Person’s
direct or indirect parent’s) Capital Stock or any officer or director of any
such specified Person or other Person or, with respect to any natural Person,
any person having a relationship with such Person by blood, marriage or adoption
not more remote than first cousin; or (3) any other Person 10% or more of the
Voting Stock of which is beneficially owned or held directly or indirectly by
such specified Person. For the purposes of this definition, “control” when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“After-Acquired
Property” means any and all assets or property acquired after the date of
this Indenture, including any property or assets acquired by the Company or a
Guarantor from a transfer from the Company or a Guarantor, which in each case
constitutes Collateral as defined in this Indenture.
“Agent” means any
Registrar, Paying Agent or co-registrar.
“Agent Members” means
members of, or participants in, the Depositary
“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 that apply to such transfer or exchange.
“Asset Sale” means any
sale, issuance, conveyance, transfer, lease or other disposition (including by
way of merger, consolidation or sale and leaseback transaction) (collectively, a
“transfer”), directly or indirectly, in one or a series of related transactions,
of:
(1) any
Capital Stock of any Restricted Subsidiary;
(2) all or
substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary; or
(3) any other
properties, assets or rights of the Company or any Restricted Subsidiary, other
than in the ordinary course of business.
provided that the sale,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Section 4.21 hereof and/or Section 5.01 hereof and not by the
provisions of Section 4.11 hereof.
For the
purposes of this definition, the term “Asset Sale” shall not
include any transfer of properties and assets or issuance of Capital
Stock:
(A) (i)
between or among (a) solely the Company and/or its Restricted Subsidiaries
that are Guarantors so long as, to the extent such transfer includes any
Collateral, such transfer does not occur unless such assets become Collateral of
the transferee prior to or simultaneously with such transfer and until and
unless
- 2
-
the
provisions of Section 4.15 (to the extent applicable to such transfer) have
otherwise been complied with in respect of such Collateral or (b) Restricted
Subsidiaries that are not Guarantors or (ii) by any Restricted Subsidiary that
is not a Guarantor to the Company or a Guarantor,
(B) that is a
Restricted Payment or Investment permitted to be made under Section 4.08
hereof,
(C) that is
of obsolete or worn-out equipment in the ordinary course of
business,
(D) that
consists of cash or Cash Equivalents,
(E) that is a
sale, lease, sub-lease, license, sub-license, consignment or other disposition
of equipment, inventory or accounts receivable in the ordinary course of
business,
(F) that
consists of the granting of a Lien permitted by Section 4.10
hereof,
(G) the trade
or exchange by the Company or any of its Restricted Subsidiaries of any assets
used or useful in the Company’s business that are owned or held by the Company
or such Restricted Subsidiary solely for assets used or useful in the Company’s
business that are owned or held by another Person that the Board of Directors of
the Company determines in good faith by resolution to be of approximately
equivalent value; provided, however, that for any trade
or exchange or series of trades or exchanges involving value in excess of $5.0
million, the Company must obtain a written opinion from an independent financial
advisor to the effect that the assets received constitute an exchange of
equivalent value, or
(H) the Fair
Market Value of which in the aggregate does not exceed $1.0 million in any
transaction or series of related transactions.
“Attributable
Indebtedness” in respect of a sale and leaseback transaction means, at
the time of determination, the present value (discounted at the rate of interest
implicit in such transaction, determined in accordance with GAAP) 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).
“Average Life to Stated
Maturity” means, as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (1) the sum of the products of
(a) the number of years from the date of determination to the date or dates of
each successive scheduled principal payment of such Indebtedness multiplied by
(b) the amount of each such principal payment by (2) the sum of all such
principal payments.
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“Bankruptcy Law” means
Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of 1978, as amended, or any similar
United States federal or state law or foreign law relating to bankruptcy,
insolvency, receivership, winding up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such
law.
“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), a Person shall be deemed to have beneficial ownership of all such shares
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time. The terms “Beneficial Ownership”
and “Beneficially
Owned” shall have a corresponding meaning.
“Board of Directors”
means, with respect to any Person, the board of directors, management committee
or other equivalent management body of such Person or any committee thereof duly
authorized to act on behalf of such board.
“Board Resolution”
means, with respect to a Board of Directors, a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by such Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
“Business Day” means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are authorized or obligated by law or executive
order to close.
“Capital Expenditures”
means for any period all direct or indirect (by way of acquisition of Capital
Stock of a Person or the expenditure of cash or the transfer of property or the
incurrence of Indebtedness) expenditures in respect of the purchase or other
acquisition of fixed or capital assets or other assets that would be required to
be capitalized in conformity with GAAP, excluding (i) normal replacement and
maintenance programs properly charged to current operations, (ii) the purchase
price of equipment to the extent that the consideration therefor consists of
used, worn out, damaged, obsolete or surplus equipment being traded in at such
time or the proceeds of a concurrent sale of such used, worn out, damaged,
obsolete or surplus equipment, (iii) the acquisition of all or substantially all
of the assets of, or any Capital Stock of, another entity or business unit (such
as a division) as permitted by the terms of this Indenture, (iv) the amount of
any expenditures used to replace assets that have suffered a casualty for which
insurance proceeds have been received or have been properly recorded as a
receivable and (v) any item customarily charged directly to expense or
depreciated over a useful life of twelve (12) months or less in accordance with
GAAP.
“Capital Lease
Obligation” of any Person means any obligation of such Person and its
Restricted Subsidiaries on a Consolidated basis under any capital lease of (or
other agreement conveying the right to use) real or personal property which, in
accordance with GAAP, is required to be recorded as a capitalized lease
obligation.
“Capital Stock” of any
Person means any and all shares, units, interests, participations, rights in or
other equivalents (however designated) of such Person’s capital
stock,
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other
equity interests whether now outstanding or issued after the date of this
Indenture, partnership interests (whether general or limited), limited liability
company interests, 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, including any Preferred Stock, and any rights
(other than debt securities convertible into Capital Stock), warrants or options
exchangeable for or convertible into such capital stock.
“Cash Equivalents”
means
(a) any
evidence of Indebtedness issued or directly and fully guaranteed or insured by
the United States or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof),
having maturities of not more than six months from the date of
acquisition,
(b) dollar
denominated time deposits, certificates of deposit or demand deposits of any
U.S. commercial bank having capital and surplus in excess of $500 million and
whose senior unsecured debt is rated at least “A-1” by S&P, or at least
“P-1” by Xxxxx’x, in each case with maturities of not more than six months from
the date of acquisition,
(c) commercial
paper issued by any bank described in clause (b) and maturing within six months
from the date of acquisition,
(d) repurchase
agreements with a bank, trust company or recognized securities dealer having
capital and surplus in excess of $500 million for direct obligations issued or
unconditionally and fully guaranteed by the United States, and
(e) money
market funds which invest substantially all of their assets in securities
described in the preceding clauses (a) through (d).
“Change of Control”
means the occurrence of any of the following events:
(a) the
consummation of any transaction the result of which is that any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), other than any of the Permitted Holders, is or becomes the Beneficial
Owner, directly or indirectly, of more than 50% of the total outstanding Voting
Stock of the Company or Parent (measured by voting power rather than the number
of shares);
(b) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company or Parent (together
with any new directors whose election to such board or whose nomination for
election by the stockholders or members, as the case may be, of the Company or
of Parent was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved), cease for any
reason to constitute a majority of such Board of Directors of the Company or of
Parent then in office;
(c) the
Company or Parent consolidates with or merges with or into any Person, other
than Parent or a Person controlled (within the meaning contemplated by
the
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definition
of Affiliate) by a Permitted Holder, or sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets to any
such Person, or any such Person consolidates with or merges into or with the
Company or Parent, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company or Parent is converted into or exchanged
for cash, securities or other property, other than any such transaction
where
(i) the
outstanding Voting Stock of the Company or Parent is changed into or exchanged
for (1) Voting Stock of the surviving corporation which is not Disqualified
Stock or (2) cash, securities and other property (other than Capital Stock of
the surviving corporation) in an amount which could be paid by the Company as a
Restricted Payment under Section 4.08 hereof (and such amount shall be treated
as a Restricted Payment subject to the provisions of Section 4.08 hereof),
and
(ii) immediately
after such transaction, no “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than any Permitted Holder,
is or becomes the Beneficial Owner, directly or indirectly, of more than 50% of
the total outstanding Voting Stock of the surviving or transferee corporation
(measured by voting power rather than the number of shares); or
(d) the
Company or Parent is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with Section 5.01 hereof;
provided that the
addition or elimination of an intermediate parent company of the Company, solely
for bona fide corporate or other business purposes, where the actual or economic
Beneficial Ownership of the Company does not change before or after the event
would not constitute a Change of Control.
Notwithstanding
the foregoing, any holding company whose only significant asset is Capital Stock
of the Company or Parent shall not itself be considered a “person” or “group”
for purposes of clause (a) or (c) above.
For
purposes of this definition, any transfer of an equity interest of an entity
that was formed for the purpose of acquiring Voting Stock of the Company will be
deemed to be a transfer of such portion of such Voting Stock as corresponds to
the portion of the equity of such entity that has been so
transferred.
“Clearstream” means
Clearstream Banking, societe anonyme, Luxembourg.
“Coliseum” means
Coliseum Capital Management, LLC.
“Collateral” means
collectively all of the property and assets that are from time to time subject
to the Lien of any of the Security Documents, including the Liens, if any,
required to be granted pursuant to this Indenture or any of the Security
Documents.
“Collateral Account”
means the collateral account established pursuant to this
Indenture.
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“Collateral Agent”
means the Trustee, acting as the collateral agent for the benefit of the Holders
of the Notes, or other financial institution or entity acting as collateral
agent for the benefit of the Trustee and the Holders of the Notes which, in the
determination of the Company and the Trustee, is acceptable and may include an
entity affiliated with the lenders under the Credit Agreement.
“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Securities Act and Exchange Act, then the body performing such duties
at such time.
“Commodity Price Protection
Agreement” means any forward contract, commodity swap, commodity option
or other similar financial agreement or arrangement relating to, or the value of
which is dependent upon, fluctuations in commodity prices.
“Company” means Uno
Restaurants, LLC, a limited liability company formed under the laws of Delaware,
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean
such successor Person.
“Consolidated Fixed Charge
Coverage Ratio” of any Person means, for any period, the ratio
of
(a) without
duplication, the sum of Consolidated Net Income (Loss), and in each case to the
extent deducted in computing Consolidated Net Income (Loss) for such period,
Consolidated Interest Expense, Consolidated Income Tax Expense, Restructuring
Expenses, customary fees and expenses of the Company and its Restricted
Subsidiaries payable in connection with any Equity Offering and Consolidated
Non-cash Charges for such period, of such Person and its Restricted Subsidiaries
on a Consolidated basis, all determined in accordance with GAAP, less all
non-cash items increasing Consolidated Net Income for such period and less all
cash payments during such period relating to non-cash charges that were added
back to Consolidated Net Income in determining the Consolidated Fixed Charge
Coverage Ratio in any prior period
to
(b) without
duplication, the sum of Consolidated Interest Expense for such period and any
cash and non-cash dividends paid on any Disqualified Stock or Preferred Stock of
such Person and its Restricted Subsidiaries during such period,
in each
case after giving pro forma effect (as
calculated in accordance with Article 11 of Regulation S-X under the Securities
Act or any successor provision) to, without duplication,
(1) the
incurrence of the Indebtedness giving rise to the need to make such calculation
and (if applicable) the application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, on the first day of such
period;
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(2) the
incurrence, repayment or retirement of any other Indebtedness by the Company and
its Restricted Subsidiaries since the first day of such period as if such
Indebtedness was incurred, repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average daily balance
of such Indebtedness during such period);
(3) in the
case of Acquired Debt or any acquisition occurring at the time of the incurrence
of such Indebtedness, the related acquisition, assuming such acquisition had
been consummated on the first day of such period; and
(4) any
acquisition or disposition by the Company and its Restricted Subsidiaries of any
company or any business or any assets out of the ordinary course of business,
whether by merger, stock purchase or sale or asset purchase or sale, or any
related repayment of Indebtedness, in each case since the first day of such
period, assuming such acquisition or disposition had been consummated on the
first day of such period;
provided that:
(a) in making
such computation, the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a pro forma and (A)
bearing a floating interest rate shall be computed as if the rate in effect on
the date of computation had been the applicable rate for the entire period and
(B) which was not outstanding during the period for which the computation is
being made but which bears, at the option of such Person, a fixed or floating
rate of interest, shall be computed by applying at the option of such Person
either the fixed or floating rate and
(b) in making
such computation, the Consolidated Interest Expense of such Person attributable
to interest on any Indebtedness under a revolving credit facility computed on a
pro forma basis shall be computed
based upon the average daily balance of such Indebtedness during the applicable
period.
“Consolidated Income Tax
Expense” of any Person means, for any period, the provision for federal,
state, local and foreign income taxes of such Person and its Consolidated
Restricted Subsidiaries for such period as determined in accordance with
GAAP.
“Consolidated Interest
Expense” of any Person means, without duplication, for any period, the
sum of
(a) the
interest expense, less interest income, of such Person and its Restricted
Subsidiaries for such period, on a Consolidated basis, including,
(i) amortization
of debt discount (excluding amortization of debt issuance costs),
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(ii) the net
cash costs associated with Interest Rate Agreements, Currency Hedging Agreements
and Commodity Price Protection Agreements (including amortization of
discounts),
(iii) the
interest portion of any deferred payment obligation,
(iv) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers acceptance financing, and
(v) accrued
interest,
plus
(b) (i) the
interest component of the Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries
during such period, and
(iI) all
capitalized interest of such Person and its Restricted
Subsidiaries,
plus
(c) the
interest expense under any Guaranteed Debt of such Person and any Restricted
Subsidiary to the extent not included under any other clause hereof, whether or
not paid by such Person or its Restricted Subsidiaries,
plus
(d) dividend
requirements of the Company with respect to Disqualified Stock and of any
Restricted Subsidiary with respect to Preferred Stock held by Persons other than
such Person or a Wholly Owned Subsidiary (except, in either case, dividends
payable solely in shares of Qualified Capital Stock of the Company or such
Restricted Subsidiary, as the case may be).
“Consolidated Net Income
(Loss)” of any Person means, for any period, the Consolidated net income
(or loss) of such Person and its Restricted Subsidiaries for such period on a
Consolidated basis as determined in accordance with GAAP, adjusted, to the
extent included in calculating such net income (or loss), by excluding, without
duplication,
(1) all
extraordinary or nonrecurring gains or losses net of taxes (less all fees and
expenses relating thereto),
(2) the
portion of net income (or loss) of such Person and its Restricted Subsidiaries
on a Consolidated basis allocable to minority interests in unconsolidated
Persons or Unrestricted Subsidiaries to the extent that cash dividends or
distributions have not actually been received by such Person or one of its
Consolidated Restricted Subsidiaries,
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(3) any gain
or loss, net of taxes, realized upon the termination of any employee pension
benefit plan,
(4) gains or
losses, net of taxes (less all fees and expenses relating thereto), in respect
of dispositions of assets other than in the ordinary course of business
(including dispositions pursuant to sale and leaseback
transactions),
(5) the net
income of any Restricted Subsidiary to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is not at the time permitted, 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, except that the Person’s equity in the net income of any such
Restricted Subsidiary shall be included up to the aggregate amount of cash
actually distributed by such Restricted Subsidiary to such Person or another
Restricted Subsidiary as a dividend or other distribution; provided that the net income
of a Restricted Subsidiary that is a Guarantor shall not be excluded pursuant to
this clause (5) for the purposes of Section 4.07 hereof,
(6) any
restoration to net income of any contingency reserve, except to the extent
provision for such reserve was made out of income accrued at any time following
the date of this Indenture,
(7) any net
gain arising from the acquisition of any securities or extinguishment, under
GAAP, of any Indebtedness of such Person or its Restricted
Subsidiaries,
(8) all
deferred financing costs written off, and premiums paid, in connection with any
early extinguishment of Indebtedness,
(9) non-cash
compensation charges or other non-cash expenses or charges arising from the
grant of or issuance or repricing of Capital Stock or other equity-based awards
or any amendment or substitution of any such Capital Stock or other equity-based
awards,
(10) deferred
rental expense which is in excess of the amount of cash rental expense actually
paid in such relevant period; provided that any amounts
excluded in any period pursuant to this clause (10) shall be deducted from
Consolidated Net Income in the period for which the cash payments in respect of
such deferred rental expense are paid,
(11) any
charges related to the write-off of goodwill or intangibles or assets as a
result of impairment, in each case, as required under GAAP, or
(12) any
cumulative effect of a change in accounting principles.
“Consolidated Net Tangible
Assets” of any Person means, at any time, for such Person and its
Restricted Subsidiaries on a Consolidated basis, an amount equal to (a) the
Consolidated assets of the Person and its Restricted Subsidiaries minus (b) all
Intangible Assets of the Person and its
Restricted Subsidiaries at that time.
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“Consolidated Non-cash
Charges” of any Person means, for any period, the aggregate depreciation,
amortization and other non-cash charges of such Person and its Subsidiaries on a
Consolidated basis for such period, as determined in accordance with GAAP
(excluding any non-cash charge which requires an accrual or reserve for cash
charges for any future period).
“Consolidation” means,
with respect to any Person, the consolidation of the accounts of such Person and
each of its Subsidiaries if and to the extent the accounts of such Person and
each of its Subsidiaries would normally be consolidated with those of such
Person, all in accordance with GAAP. The term “Consolidated” shall
have a similar meaning.
“Corporate Trust Office of
the Trustee” shall 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 the Credit Agreement, dated as of the date of this Indenture, among the
Company and each of the Company’s Subsidiaries that are parties thereto, as
borrowers, Xxxxx Fargo Capital Finance, Inc., as administrative agent and the
lenders party thereto, as such agreement, in whole or in part, in one or more
instances, may be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified from time to time
(including any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplementations or other modifications of the
foregoing).
“Credit Facility”
means one or more debt facilities (including the Credit Agreement), commercial
paper facilities or other debt instruments, indentures or agreements, 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), letters of credit, bank
products or other debt obligations, in each case, as amended, restated,
modified, renewed, refunded, restructured, supplemented, replaced or refinanced
from time to time, in whole or in part, including any amendment increasing the
amount of Indebtedness incurred or available to be borrowed thereunder,
extending the maturity of any Indebtedness incurred thereunder or contemplated
thereby or deleting, adding or substituting one or more parties thereto (whether
or not such added or substituted parties are banks or other institutional
lenders).
“Currency Hedging
Agreements” means one or more of the following agreements which shall be
entered into by one or more financial institutions: foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against the fluctuations in currency values.
“Custodian” means the
Trustee, as custodian with respect to the Notes in global form, or any successor
entity thereto.
“Default” means any
event which is, or after notice or passage of time or both would be, an Event of
Default.
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“Definitive Note”
means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.07 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 2.04 hereof as the Depositary with respect to
the Notes, and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provisions of this
Indenture.
“Designated Non-cash
Consideration” means the Fair Market Value of non-cash consideration
received by the Company or any of its Restricted Subsidiaries in connection with
an Asset Sale that is so designated pursuant to an Officers’ Certificate,
setting forth the basis of the valuation.
“Disinterested
Director” means, with respect to any transaction or series of related
transactions, a member of the Board of Directors of the Company who does not
have any material direct or indirect financial interest in or with respect to
such transaction or series of related transactions.
“Disqualified Stock”
means any Capital Stock that, either by its terms or by the terms of any
security into which it is convertible or exchangeable or otherwise, is or, upon
the happening of an event or passage of time would be, required to be redeemed
prior to the final Stated Maturity of the principal of the Notes or is
redeemable at the option of the holder thereof at any time prior to such final
Stated Maturity (other than upon a change of control of or sale of assets by the
Company in circumstances where the Holders of the Notes would have similar
rights), or is convertible into or exchangeable for debt securities at any time
prior to such final Stated Maturity at the option of the holder
thereof.
“DTC” means The
Depository Trust Company, its nominees and successors.
“Equity Holders” means
Twin Haven, Coliseum, Newport (and/or certain Affiliates of each of the
foregoing) and all other Persons who have directly or indirectly acquired all of
the outstanding capital stock of Parent.
“Equity Offering”
means (x) a Public Equity Offering, or (y) a private placement of Capital Stock
(other than Disqualified Stock) of the Company or any direct or indirect parent
entity of the Company, as the case may be, pursuant to an exemption from the
registration requirements of the Securities Act, to a Person (other than an
Affiliate of the Company).
“Euroclear” means
Euroclear Bank S.A./N.V., as operator of the Euroclear system.
“Event of Loss” means,
with respect to any Collateral, any (1) loss, destruction or damage of such
Collateral, (2) condemnation, seizure or taking by exercise of the power of
eminent domain or otherwise of such Collateral, or confiscation of such
Collateral or the requisition of the use of such Collateral or (3) settlement in
lieu of clause (2) above.
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“Exchange Act” means
the Securities Exchange Act of 1934, as amended, or any successor statute, and
the rules and regulations promulgated by the Commission thereunder.
“Excluded Collateral”
means the collective reference to (a) any rights or interests in any lease,
license, contract, or agreement, as such, if under the terms of such lease,
license, contract, or agreement, or applicable law with respect thereto, the
valid grant by the Company or any Guarantor of a security interest or Lien
therein is prohibited and such prohibition has not been or is not waived or the
consent of the other party to such lease, license, contract, or agreement has
not been or is not otherwise obtained or under applicable law such prohibition
cannot be waived; provided that the foregoing
exclusion shall in no way be (i) construed to apply if any such prohibition
would be rendered ineffective under the Uniform Commercial Code in effect in the
State of New York or other applicable law (including the Bankruptcy Code) or
principles of equity, (ii) construed so as to limit, impair or otherwise affect
the Collateral Agent’s unconditional continuing security interests in and Liens
upon any rights or interests of the Company and the Guarantors in or to the
proceeds thereof, including monies due or to become due under any such lease,
license, contract, or agreement (including any accounts), or (iii) construed to
apply at such time as the condition causing such prohibition shall be remedied
and, to the extent severable, Excluded Collateral shall not include any portion
of such lease, license, contract, or agreement that is not subject to such
prohibition; (b) any of the outstanding Capital Stock of any Foreign Subsidiary
in excess of 65% of the voting power of all classes of Capital Stock of such
Foreign Subsidiary entitled to vote; and (c) any real property leased by the
Company or any Guarantor.
“Executive Officer”
means, with respect to any Person, the Chief Executive Officer, the President,
the Chief Operating Officer or the Chief Financial Officer of such
Person.
“Fair Market Value”
means, with respect to any asset or property, the price that could reasonably be
negotiated in an arm’s-length transaction, for cash, between a willing seller
and a willing buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Fair Market Value shall be determined, except as
otherwise provided,
(a) if such
asset or property has a Fair Market Value equal to or less than $2.0 million, by
any Officer of the Company,
(b) if such
asset or property has a Fair Market Value in excess of $2.0 million but less
than $10.0 million, by at least a majority of the Board of Directors of the
Company within 30 days of the relevant transaction, or
(c) if such
asset or property has a Fair Market Value in excess of $10.0 million, by an
investment banking firm of national standing or other recognized independent
expert with experience determining the Fair Market Value of such asset or
property and set forth in a written opinion to the Trustee, dated within 30 days
of the relevant transaction.
“First Priority Lien
Obligations” means (a) Indebtedness and other Obligations incurred under
clauses (1), (6) (with respect to Interest Rate Agreements under the Credit
Agreement permitted pursuant to clause (1)), (8) (with respect to letters of
credit under the Credit Agreement permitted pursuant to clause (1)) and up to
$3.0 million under clause (14), in each
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case, of
the definition of “Permitted Debt” in
paragraph (b) of Section 4.07 hereof, plus (b) any interest, premium, if any,
fees, expenses and indemnities payable under the documents governing the
Indebtedness and other Obligations referred to in clause (a).
“First Priority Liens”
means all Liens that secure the First Priority Lien Obligations.
“Foreign Subsidiary”
means any Restricted Subsidiary of the Company that both (a) (x) is not
organized under the laws of the United States of America or any State thereof or
the District of Columbia, or (y) was organized under the laws of the United
States of America or any State thereof or the District of Columbia that has no
material assets other than Capital Stock of one or more foreign entities of the
type described in clause (a) (x) above and (b) is not a guarantor of
Indebtedness under the Credit Agreement.
“Generally Accepted
Accounting Principles” or “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 from time to time.
“Global Notes” means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes, substantially in the form of Exhibit A1 or A2 hereto,
as appropriate, issued in accordance with Sections 2.01, 2.07(b)(iii),
2.07(b)(iv), 2.07(d)(i), 2.07(d)(ii) or 2.07(d)(iii) of this Indenture and
having the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary.
“Global Note Legend”
means the legend set forth in Section 2.07(g)(ii), which is required to be
placed on all Global Notes issued under this Indenture.
“Guarantee” means the
guarantee by any Guarantor of the Company’s Note Obligations.
“Guaranteed Debt” of
any Person means, without duplication, all Indebtedness of any other Person
referred to in the definition of Indebtedness below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement:
(a) to pay or
purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness,
(b) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Indebtedness or to assure the holder of such Indebtedness against
loss,
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(c) to supply
funds to, or in any other manner invest in, the debtor (including any agreement
to pay for property or services without requiring that such property be received
or such services be rendered),
(d) to
maintain working capital or equity capital of the debtor, or otherwise to
maintain the net worth, solvency or other financial condition of the debtor or
to cause such debtor to achieve certain levels of financial performance
or
(e) otherwise
to assure a creditor against loss;
provided that the term “guarantee” shall not
include endorsements for collection or deposit, in either case in the ordinary
course of business.
“Guarantor” means
Parent, its successors and assigns, until such Person is released from its
Guarantee in accordance with the terms of this Indenture, and the Subsidiary
Guarantors.
“Guarantor Supplemental
Indenture” means a supplemental indenture to this Indenture,
substantially in the form attached hereto as Exhibit E.
“Holder” means the
Person in whose name a Note is, at the time of determination, registered on the
Registrar’s books.
“IAI Global Note”
means the 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.
“Indebtedness” means,
with respect to any Person, without duplication,
(a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables and other accrued
current liabilities arising in the ordinary course of business, but including
all obligations, contingent or otherwise, of such Person in connection with any
letters of credit issued under letter of credit facilities, acceptance
facilities or other similar facilities,
(b) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments,
(c) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of
business,
(d) all
obligations under Interest Rate Agreements, Currency Hedging Agreements or
Commodity Price Protection Agreements of such Person (the amount of any
such
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obligations
to be equal at any time to the termination value of such agreement or
arrangement giving rise to such obligation that would be payable by such Person
at such time),
(e) all
Capital Lease Obligations of such Person,
(f) all
Indebtedness referred to in clauses (a) through (e) above of other Persons and
all dividends of other Persons, to the extent the payment of such Indebtedness
or dividends is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien, upon or
with respect to property (including accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness,
(g) all
Guaranteed Debt of such Person,
(h) all
Disqualified Stock issued by such Person valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends,
(i) Preferred
Stock of any Restricted Subsidiary of the Company or any Guarantor,
and
(j) any
amendment, supplement, modification, deferral, renewal, extension, refunding or
refinancing of any liability of the types referred to in clauses (a) through (i)
above.
For
purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Stock as if such Disqualified Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
Fair Market Value of such Disqualified Stock, such Fair Market Value to be
determined in good faith by the Board of Directors of the issuer of such
Disqualified Stock.
“Indenture” means this
Indenture, as amended or supplemented from time to time in accordance with the
terms hereof.
“Indirect Participant”
means a Person who holds a beneficial interest in a Global Note through a
Participant.
“Initial Notes” means
the Notes that are originally issued on the Issue Date in the aggregate
principal amount of up to $25.0 million.
“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, which is
not also a QIB.
“Intercompany Debt”
means any Indebtedness owing by any of the Company or any of the Restricted
Subsidiaries of the Company to the Company or any of the Restricted Subsidiaries
of the Company.
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“Interest Payment
Date” means each [___________] and [__________], commencing [____________],
2011.
“Interest Rate
Agreements” means one or more of the following agreements which shall be
entered into by one or more financial institutions: interest rate protection
agreements (including interest rate swaps, caps, floors, collars and similar
agreements) and/or other types of interest rate hedging agreements from time to
time.
“Investment” means,
with respect to any Person, directly or indirectly, any advance, loan (including
guarantees), or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase, acquisition or
ownership by such Person of any Capital Stock, bonds, notes, debentures or other
securities issued or owned by any other Person and all other items that would be
classified as investments on a balance sheet prepared in accordance with GAAP.
“Investment”
shall exclude direct or indirect advances to customers or suppliers in the
ordinary course of business that are, in conformity with GAAP, recorded as
accounts receivable, prepaid expenses or deposits on the Company’s or any
Restricted Subsidiary’s balance sheet, endorsements for collection or deposit
arising in the ordinary course of business and extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices. If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Capital Stock 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 (other than the sale of all of the
outstanding Capital Stock of such Subsidiary), the Company will be deemed to
have made an Investment on the date of 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 Section 4.08
hereof.
“Issue Date” means the
original issue date of the Initial Notes under this Indenture.
“Leasehold Mortgage”
means the mortgage on the interest of SLA Brockton, Inc., as a subtenant, with
respect to 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx, dated as of the date of
this Indenture, as amended, modified, restated, supplemented or replaced from
time to time in accordance with the terms hereof and thereof.
“Lien” means any
mortgage or deed of trust, charge, pledge, lien (statutory or otherwise),
privilege, security interest, assignment, deposit, arrangement, easement,
hypothecation, claim, preference, priority or other encumbrance upon or with
respect to any property of any kind (including any conditional sale, capital
lease or other title retention agreement, any leases in the nature thereof, and
any agreement to give any security interest), real or personal, movable or
immovable, now owned or hereafter acquired. A Person will be deemed to own
subject to a Lien any property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease Obligation or other title retention agreement.
“Maturity” means, when
used with respect to the Notes, the date on which the principal of the Notes
becomes due and payable as therein provided or as provided in this
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Indenture,
whether at Stated Maturity, the Collateral Asset Sale Offer Date, the Asset Sale
Offer Date, the Loss Proceeds Offer Date or the redemption date and whether by
declaration of acceleration, Collateral Asset Sale Offer in respect of
Collateral Excess Proceeds, Asset Sale Offer in respect of Excess Proceeds, Loss
Proceeds Offer in respect of Excess Loss Proceeds, Change of Control Offer in
respect of a Change of Control, call for redemption or otherwise.
“Moody’s” means
Xxxxx’x Investors Service, Inc. and any successor thereof.
“Net Cash Proceeds”
means
(a) with
respect to any Asset Sale by any Person, the proceeds thereof (without
duplication in respect of all Asset Sales) in the form of cash or Cash
Equivalents including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for, cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) net
of
(i) brokerage
commissions and other reasonable fees and expenses (including fees and expenses
of counsel, accountants and investment bankers) related to such Asset
Sale,
(ii) provisions
for all taxes payable as a result of such Asset Sale,
(iii) payments
made to retire Indebtedness where payment of such Indebtedness is secured by the
assets or properties the subject of such Asset Sale,
(iv) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale
and
(v) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers’ Certificate delivered to the
Trustee; and
(b) with
respect to any issuance or sale of Capital Stock or options, warrants or rights
to purchase Capital Stock, or debt securities or Capital Stock that have been
converted into or exchanged for Capital Stock as provided under Section 4.08
hereof, the proceeds of such issuance or sale in the form of cash or Cash
Equivalents including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for, cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary), net of
attorney’s fees, accountant’s fees and brokerage, consultation, underwriting and
other fees and expenses actually
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incurred
in connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
“Net Loss Proceeds”
means, with respect to any Event of Loss, the proceeds in the form of (a) cash
or Cash Equivalents and (b) insurance proceeds from condemnation awards or
damages awarded by any judgment, in each case received by the Company or any of
its Restricted Subsidiaries from such Event of Loss, net of:
(1) reasonable
out-of-pocket expenses and fees relating to such Event of Loss (including legal,
accounting and appraisal or insurance adjuster fees);
(2) taxes
paid or payable after taking into account any reduction in Consolidated tax
liability due to available tax credits or deductions and any tax sharing
arrangements;
(3) any
repayment of Indebtedness that is secured by, or directly related to, the
property or assets that are the subject of such Event of Loss; and
(4) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Event of Loss and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Event of Loss, including liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Event of Loss.
“Newport” means
Newport Global Opportunities Fund, L.P. and Newport Global Credit Fund (Master)
LP.
“Non-U.S. Person”
means a Person who is not a U.S. Person.
“Note Obligations”
means:
(1) all
principal of, premium, if any, and interest (including any interest which
accrues after the commencement of any proceeding under any Bankruptcy Law with
respect to the Company or any Guarantor, whether or not allowed or allowable in
whole or in part as a claim in any such proceeding) on any Note;
(2) all fees,
expenses, indemnification obligations and other amounts of whatever nature now
or hereafter payable by the Company or any Guarantor (including any amounts
which accrue after the commencement of any proceeding under any Bankruptcy Law
with respect to the Company or any Guarantor, whether or not allowed or
allowable in whole or in part as a claim in any such proceeding), and the
performance of all other obligations or liabilities now existing or hereafter
arising, pursuant to the Notes, this Indenture, the Guarantees or any Security
Document;
(3) all
expenses of the Trustee or the Collateral Agent as to which one or more of such
agents has a right to reimbursement under this Indenture or any
Security
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Document,
including any and all sums advanced by the Collateral Agent to preserve the
Collateral or preserve its Liens in the Collateral; and
(4) in the
case of each Guarantor, all amounts now or hereafter payable by such Guarantor
and all other obligations or liabilities now existing or hereafter arising or
incurred (including any amounts which accrue after the commencement of any
proceeding under any Bankruptcy Law with respect to the Company or such
Guarantor, whether or not allowed or allowable in whole or in part as a claim in
any such proceeding) on the part of such Guarantor pursuant to the Notes, this
Indenture, the Guarantees or any Security Document;
together
in each case with all renewals, modifications, refinancings, consolidations or
extensions thereof.
“Notes” means the 15%
Senior Subordinated Secured Notes due 2015 issued pursuant to this Indenture,
including the Initial Notes and any Additional Notes, all treated as a single
class.
“Obligations” means
any principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
“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 or any
Vice-President of such Person.
“Officers’
Certificate” means a certificate signed on behalf of the Company by at
least 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.
“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.
“Parent” means Uno
Restaurant Holdings Corporation, a Delaware corporation, and its successors and
assigns, which is a holding company that, as of the Issue Date, directly owns
all of the equity interests in the Company.
“Pari Passu
Indebtedness” means (a) any Indebtedness of the Company that is equal in
right of payment to the Notes and (b) with respect to any Guarantee,
Indebtedness which ranks equal in right of payment to such
Guarantee.
“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).
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“Permitted Business”
means the lines of business conducted by the Company and its Restricted
Subsidiaries on the Issue Date and businesses reasonably related, complementary
or ancillary thereto, including reasonably related extensions or expansions
thereof.
“Permitted Holders”
means Parent, Coliseum, Twin Haven and Newport, and any of their respective
Affiliates.
“Permitted Investment”
means
(1) Investments
in any Restricted Subsidiary or any Person which, as a result of such
Investment, (a) becomes a Restricted Subsidiary that is a Guarantor or (b) is
merged or consolidated with or into, or transfers or conveys substantially all
of its assets to, or is liquidated into, the Company or any Restricted
Subsidiary that is a Guarantor;
(2) Indebtedness
of the Company or a Restricted Subsidiary described under clauses (4), (5) and
(6) of the definition of “Permitted
Debt”;
(3) Investments
in any of the Notes;
(4) Cash
Equivalents;
(5) Investments
acquired by the Company or any Restricted Subsidiary in connection with an asset
sale permitted under Section 4.11 hereof to the extent such Investments are
non-cash proceeds as permitted under such Section;
(6) Investments
of the Company or any of its Restricted Subsidiaries in existence on the date of
this Indenture;
(7) Investments
acquired in exchange for Net Cash Proceeds contributed to the common equity
capital of the Company after the date of this Indenture from the issuance and
sale of Capital Stock of the Parent; provided that such Net Cash
Proceeds are used to make such Investment within 10 days of the receipt thereof
and the amount of all such Net Cash Proceeds will be excluded from clause (B) of
the second clause (3) of Section 4.08(a);
(8) Investments
in prepaid expenses, negotiable instruments held for collection and lease,
utility and worker’s compensation, performance and other similar deposits
provided to third parties in the ordinary course of business;
(9) loans or
advances to employees of the Company in the ordinary course of business for bona
fide business purposes of the Company and its Restricted Subsidiaries (including
travel, entertainment and moving expenses) the proceeds of which are used to
purchase Capital Stock of the Company in the aggregate amount outstanding at any
one time of $1.0 million;
(10) any
Investments received in good faith in settlement or compromise of obligations of
trade creditors or customers that were incurred in the ordinary course
of
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business,
including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer;
(11) Investments
by the Company or any Restricted Subsidiary in joint ventures in the aggregate
amount outstanding at any one time of up to $5.0 million; and
(12) other
Investments in the aggregate amount outstanding at any one time of up to $7.0
million.
In
connection with any assets or property contributed or transferred to any Person
as an Investment, such property and assets shall be equal to the Fair Market
Value at the time of Investment, without regard to subsequent changes in
value.
“Permitted Lien”
means:
(1) any Lien
existing as of the date of this Indenture on Indebtedness existing on the date
of this Indenture and not otherwise referred to in this definition;
(2) the First
Priority Liens;
(3) the
Second Priority Liens;
(4) any Lien
arising by reason of
(a) any
judgment, decree or order of any court, so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment, decree or order shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;
(b) taxes,
assessments or governmental charges or claims that are not yet delinquent or
which are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted; provided that any reserve or
other appropriate provision as will be required in conformity with GAAP will
have been made therefor;
(c) security
made in the ordinary course of business in connection with workers’
compensation, unemployment insurance or other types of social
security;
(d) good
faith deposits in connection with tenders, leases and contracts (other than
contracts for the payment of money);
(e) zoning
restrictions, easements, licenses, reservations, title defects, rights of others
for rights of way, utilities, sewers, electric lines, telephone or telegraph
lines, and other similar purposes, provisions, covenants, conditions, waivers,
restrictions on the use of property or minor irregularities of title (and with
respect to leasehold interests, mortgages, obligations, Liens and
other
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encumbrances
incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner of the leased property, with or without consent of the
lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company or any Subsidiary or
the value of such property for the purpose of such business;
(f) deposits
to secure public or statutory obligations, or in lieu of surety or appeal
bonds;
(g) operation
of law in favor of mechanics, carriers, warehousemen, landlords, materialmen,
laborers, employees or suppliers, incurred in the ordinary course of business
for sums which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection thereof;
or
(h) Indebtedness
or other obligations of a Restricted Subsidiary owing to the Company or another
Restricted Subsidiary of the Company that is a Guarantor;
(5) any Lien
securing Acquired Debt created prior to (and not created in connection with, or
in contemplation of) the incurrence of such Indebtedness by the Company or any
Subsidiary; provided
that such Lien only secures the assets acquired in connection with the
transaction pursuant to which the Acquired Debt became an obligation of the
Company or a Restricted Subsidiary;
(6) any Lien
to secure performance bids, leases (including statutory and common law
landlord’s liens), statutory obligations, surety and appeal bonds, letters of
credit and other obligations of a like nature and incurred in the ordinary
course of business of the Company or any Subsidiary and not securing or
supporting Indebtedness;
(7) any Lien
securing Indebtedness permitted to be incurred under Interest Rate Agreements,
Commodity Price Protection Agreements or Currency Hedging Agreements incurred
pursuant to clause (6) of the definition of Permitted Debt;
(8) any Lien
securing Capital Lease Obligations or Purchase Money Obligations permitted by
clause (7) of the definition of Permitted Debt and which are incurred or assumed
solely in connection with the acquisition, development or construction of real
or personal, moveable or immovable property commencing within 90 days of such
incurrence or assumption; provided that such Liens only
extend to such acquired, developed or constructed property, such Liens secure
Indebtedness in an amount not in excess of the original purchase price or the
original cost of any such assets or repair, addition or improvement thereto, and
the incurrence of such Indebtedness is permitted by Section 4.07
hereof;
(9) leases
and subleases of real property which do not materially interfere with the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries;
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(10) (A) Liens
on property, assets or shares of stock of a Person at the time such Person
becomes a Restricted Subsidiary or is merged with or into or consolidated with
the Company or any of its Restricted Subsidiaries; provided, however, that such Liens are
not created, incurred or assumed in connection with, or in contemplation of,
such other Person becoming a Restricted Subsidiary or such merger or
consolidation; provided further, that any such Lien may not extend to any other
property owned by the Company or any Restricted Subsidiary and assets fixed or
appurtenant thereto; and (B)Liens on property, assets or shares of capital stock
existing at the time of acquisition thereof by the Company or any of its
Restricted Subsidiaries; provided, however, that such Liens are
not created, incurred or assumed in connection with, or in contemplation of,
such acquisition and do not extend to any property other than the property so
acquired;
(11) any
extension, renewal, refinancing or replacement, in whole or in part, of any Lien
described in the foregoing clauses (1) through (8) so long as no additional
collateral is granted as security thereby;
(12) in
addition to the items referred to in clauses (1) through (11) above, Liens of
the Company and its Restricted Subsidiaries on Indebtedness in an aggregate
amount which, when taken together with the aggregate amount of all other Liens
on Indebtedness incurred pursuant to this clause (12) and then outstanding, will
not exceed $7.0 million at any one time outstanding; and
(13) Liens to
secure Indebtedness permitted by clause (14) of the definition of Permitted
Debt.
“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 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 being 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 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
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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
that is the obligor on the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged.
“Person” means any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“PIK Interest” means
the portion of an installment of interest due on an Interest Payment Date
payable by issuance of PIK Notes as and to the extent provided for in Section
4.01(d).
“PIK Interest Amount”
means, with respect to any Interest Payment Date for any Note that is prior to
the Maturity thereof and with respect to which the Company has duly made a PIK
Interest Election, the portion of the aggregate installment of interest due and
payable on such Interest Payment Date that is payable on such Interest Payment
Date by issuance of PIK Notes in accordance with Section 2.02(a), such portion
being up to one-third of such aggregate installment of interest.
“PIK Interest
Election” means, with respect to any Interest Payment Date, an election
by the Company duly given pursuant to Section 4.01(c) not to pay the entire
amount of interest due on the Notes on such Interest Payment Date in
cash.
“PIK Notes” means
Notes issued (including by any increase in the principal amount of any
outstanding Global Note previously authenticated hereunder) on any Interest
Payment Date pursuant to Section 2.02(a) in payment of the portion of the
aggregate installment of interest due and payable on any Notes on such Interest
Payment Date constituting the PIK Interest Amount with respect to such Interest
Payment Date for such Notes.
“Predecessor Note” of
any particular Note means every previous Note evidencing all or a portion of the
same debt as that evidenced by such particular Note; and any Note authenticated
and delivered under Section 2.08 in lieu of a lost, destroyed or stolen Note
shall be deemed to evidence the same debt as the lost, destroyed or stolen
Note.
“Preferred Stock”
means, with respect to any Person, any Capital Stock of any class or classes
(however designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over the Capital Stock of
any other class in such Person.
“Private Placement
Legend” means the legend set forth in Section 2.07(g)(i) to be placed on
all Notes issued under the Indenture except for Unrestricted Definitive Notes
and Unrestricted Global Notes (or where otherwise permitted by the provisions of
this Indenture).
“Public Equity
Offering” means an underwritten public offering of common stock (other
than Disqualified Stock) of any direct or indirect parent company of the
Company
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pursuant
to a registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form S-4
(or any successor form covering substantially the same transactions), Form S-8
(or any successor form covering substantially the same transactions) or
otherwise relating to equity securities issuable under any employee benefit
plan) with gross proceeds to any direct or indirect parent company of the
Company of at least $25 million that are promptly contributed to the Company on
a non-recourse basis.
“Purchase Money
Obligations” means any Indebtedness secured by a Lien on assets related
to the business of the Company and any additions and accessions thereto, which
are purchased or constructed by the Company at any time after the Notes are
issued; provided
that
(1) the
security agreement or conditional sales or other title retention contract
pursuant to which the Lien on such assets is created (collectively, a “Purchase Money
Security Agreement”) shall be entered into within 90 days
after the purchase or substantial completion of the construction of such assets
and shall at all times be confined solely to the assets so purchased or
acquired, any additions and accessions thereto and any proceeds
therefrom,
(2) at no
time shall the aggregate principal amount of the outstanding Indebtedness
secured thereby be increased, except in connection with the purchase of
additions and accessions thereto and except in respect of fees and other
obligations in respect of such Indebtedness, and
(3) (A) the
aggregate outstanding principal amount of Indebtedness secured thereby
(determined on a per asset basis in the case of any additions and accessions)
shall not at the time such Purchase Money Security Agreement is entered into
exceed 100% of the purchase price to the Company of the assets subject thereto
or (B) the Indebtedness secured thereby shall be with recourse solely to the
assets so purchased or acquired, any additions and accessions thereto and any
proceeds therefrom.
“QIB” means a
“qualified institutional buyer” as defined in Rule 144A.
“Qualified Capital
Stock” of any Person means any and all Capital Stock of such Person other
than Disqualified Stock.
“Regular Record Date”
means each [_________] and [_________] preceding the applicable
Interest Payment Date.
“Regulation S” means
Regulation S promulgated under the Securities Act.
“Regulation S Global
Note” means a Regulation S Temporary Global Note or a Regulation S
Permanent Global Note, as appropriate.
“Regulation S Permanent
Global Note” means a permanent Gobal 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,
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issued in
a denomination equal to the outstanding principal amount at maturity of the
Regulation S Temporary Global Note upon expiration of the Restricted
Period.
“Regulation S Temporary
Global Note” means a temporary Gobal Note in the form of Exhibit A2
hereto bearing the Global Note Legend, the Private Placement Legend and the
Temporary Regulation S 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 at maturity of the Notes initially sold in
reliance on Rule 903 of Regulation S.
“Responsible Officer,”
when used with respect to the Trustee, means any officer within the corporate
trust department 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 or her 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 Period”
means the 40-day restricted period as defined in Regulation S.
“Restricted
Subsidiary” means any Subsidiary of the Company that has not been
designated by the Board of Directors of the Company by a Board Resolution
delivered to the Trustee as an Unrestricted Subsidiary pursuant to and in
compliance with Section 4.19 hereof.
“Restructuring
Expenses” means losses, expenses and charges incurred in connection with
restructuring within the Company and one or more of its Restricted Subsidiaries,
including in connection with the integration of acquired businesses or Persons,
dispositions of one or more Subsidiaries or businesses, existing of one or more
lines of business and relocation or consolidation of facilities, including
severance, lease termination and other non-ordinary course, non-operating costs
and expenses in connection therewith as set forth in an Officers’
Certificate.
“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.
“Second Priority
Liens” means all Liens that secure all or any portion of the Note
Obligations.
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“Securities Act” means
the Securities Act of 1933, as amended, or any successor statute, and the rules
and regulations promulgated by the Commission thereunder.
“Security Agreement”
means the Security Agreement, dated as of the date of this Indenture, among the
Collateral Agent, the Trustee, the Company and the other grantors identified
therein granting, among other things, a Lien on the Collateral described therein
in favor of the Collateral Agent for the benefit of the Trustee and the Holders
of Notes, as amended, modified, restated, supplemented or replaced from time to
time in accordance with the terms hereof and thereof.
“Security Documents”
means the Security Agreement, the Leasehold Mortgage and all of the security
agreements, pledges, collateral assignments, mortgages, deeds of trust, trust
deeds or other agreements or instruments evidencing or creating or purporting to
create any Security Interests in favor of the Collateral Agent for the benefit
of the Trustee and the Holders of Notes, in all or any portion of the
Collateral, as amended, modified, restated, supplemented or replaced from time
to time.
“Security Interests”
means the Liens on the Collateral created by the Security Documents in favor of
the Collateral Agent for the benefit of the Trustee and the Holders of
Notes.
“S&P” means
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., and any successor thereof.
“Significant
Subsidiary” means any Restricted Subsidiary that would be a “significant
subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission as in effect on the date of this
Indenture.
“Stated Maturity”
means, when used with respect to any Indebtedness or any installment of interest
thereon, the dates specified in such Indebtedness as the fixed date on which the
principal of such Indebtedness or such installment of interest, as the case may
be, is due and payable.
“Stockholder
Agreement” means the Stockholder Agreement, dated as of [_______], among [the Company,] [Parent] and the Equity
Holders.
“Subordinated
Indebtedness” means Indebtedness of the Company or a Guarantor
subordinated in right of payment to the Notes or a Guarantee, as the case may
be.
“Subordination
Agreement” means the Subordination Agreement, dated as of the date of
this Indenture, between Xxxxx Fargo Capital Finance, Inc., as Senior Agent (the “Senior Agent”), and U.S.
Bank National Association, as Collateral Agent and Trustee, as amended,
modified, restated, supplemented or replaced from time to time in accordance
with the terms hereof and thereof.
“Subsidiary” of a
Person means
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(a) any
corporation more than 50% of the outstanding voting power of the Voting Stock of
which is owned or controlled, directly or indirectly, by such Person or by one
or more other Subsidiaries of such Person, or by such Person and one or more
other Subsidiaries thereof, or
(b) any
limited partnership of which such Person or any Subsidiary of such Person is a
general partner, or
(c) any other
Person in which such Person, or one or more other Subsidiaries of such Person,
or such Person and one or more other Subsidiaries, directly or indirectly, has
more than 50% of the outstanding partnership or similar interests or has the
power, by contract or otherwise, to direct or cause the direction of the
policies, management and affairs thereof.
“Subsidiary
Guarantors” means each of the direct and indirect subsidiaries of the
Company named in Schedule A hereto and any other Subsidiary that executes a
Guarantor Supplemental Indenture in accordance with the provisions of this
Indenture, and their respective successors and assigns, in each case until such
Person is released from its Guarantee in accordance with the terms of this
Indenture.
“Temporary Regulation S
Legend” means the legend set forth in Section 2.07(h) hereof, which is
required to be placed on the Regulation S Temporary Global Note.
“Trust Indenture Act”
or “TIA” means
the Trust Indenture Act of 1939, as amended, or any successor
statute.
“Trustee” means U.S.
Bank National Association until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
“Twin Haven” means
Twin Haven Capital Partners, LLC.
“Unrestricted Definitive
Note” means one or more Definitive Notes that do not bear and are not
required to bear the Private Placement Legend.
“Unrestricted Global
Note” means a permanent Global Note substantially in the form of Exhibit
A1 attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that is deposited
with or on behalf of and registered in the name of the Depositary, representing
a series of Notes that do not bear the Private Placement Legend.
“Unrestricted
Subsidiary” means any Subsidiary of the Company (other than a Guarantor)
designated as such pursuant to and in compliance with Section 4.19
hereof.
“Unrestricted Subsidiary
Indebtedness” of any Unrestricted Subsidiary means Indebtedness of such
Unrestricted Subsidiary
(a) as to
which neither the Company nor any Restricted Subsidiary is directly or
indirectly liable (by virtue of the Company or any such Restricted Subsidiary
being the
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primary
obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness), except Guaranteed Debt of the Company or any Restricted
Subsidiary to any Affiliate of the Company, in which case (unless the incurrence
of such Guaranteed Debt resulted in a Restricted Payment at the time of
incurrence) the Company shall be deemed to have made a Restricted Payment equal
to the principal amount of any such Indebtedness to the extent guaranteed at the
time such Affiliate is designated an Unrestricted Subsidiary and
(b) which,
upon the occurrence of a default with respect thereto, does not result in, or
permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare, a default on such Indebtedness of the Company or any
Restricted Subsidiary or cause the payment thereof to be accelerated or payable
prior to its Stated Maturity;
provided that notwithstanding
the foregoing, any Unrestricted Subsidiary may guarantee the Notes.
“U.S. Legal Tender”
means such coin or currency of the United States of America which, as at the
time of payment, shall be immediately available legal tender for the payment of
public and private debts.
“U.S. Government
Obligations” means (i) securities that are (a) direct obligations of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the 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 issuer thereof;
and (ii) depositary receipts issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (i) above and held by such bank for the account of
the holder of such depositary receipt, or with respect to any specific payment
of principal or interest on any U.S. Government Obligation which is so specified
and held; 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 depositary receipt from
any amount received by the custodian in respect of the U. S. Government
Obligation or the specific payment of principal or interest of the U.S.
Government Obligation evidenced by such depositary receipt.
“U. S. Person” means a
U. S. person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of a
Person means Capital Stock of such Person of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors, managers
or trustees of such Person (irrespective of whether or not at the time Capital
Stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
“Weighted Average Life to
Maturity” means, as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (1) the sum of the products of
(a) the number of years from the date of determination to the date or dates of
each successive
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scheduled
principal payment and (b) the amount of each such principal payment by (2) the
sum of all such principal payments.
“Wholly Owned Restricted
Subsidiary” means a Restricted Subsidiary all the Capital Stock of which
is owned by the Company or another Wholly Owned Restricted Subsidiary (other
than directors’ qualifying shares).
Section
1.02. Other
Definitions.
|
TERM
|
DEFINED
IN SECTION
|
|
“Act”
|
13.14
|
|
“Affiliate
Transaction”
|
4.09
|
|
“Asset Sale
Offer”
|
4.11
|
|
“Asset Sale Offer
Date”
|
4.11
|
|
“Asset Sale Offer
Price”
|
4.11
|
|
“Authentication
Order”
|
2.02
|
|
“Change of Control
Offer”
|
4.21
|
|
“Change of Control
Purchase Date”
|
4.21
|
|
“Change of Control
Purchase Notice”
|
4.21
|
|
“Change of Control
Purchase Price”
|
4.21
|
|
“Collateral Asset
Sale”
|
4.11
|
|
“Collateral Asset Sale
Offer”
|
4.11
|
|
“Collateral Asset Sale
Offer Date”
|
4.11
|
|
“Collateral Asset Sale
Offer Price”
|
4.11
|
|
“Collateral Excess
Proceeds”
|
4.11
|
|
“Covenant
Defeasance”
|
8.03
|
|
“Defeasance Redemption
Date”
|
8.04
|
|
“Designation”
|
4.19
|
|
“Designation
Amount”
|
4.19
|
|
“Event of
Default”
|
6.01
|
|
“Excess Loss
Proceeds”
|
4.16
|
|
“Excess
Proceeds”
|
4.11
|
|
“Funds in
Trust”
|
8.04
|
|
“incur”
|
4.07
|
|
“Legal
Defeasance”
|
8.02
|
|
“Legal
Holiday”
|
13.20
|
|
“Loss Proceeds
Offer”
|
4.16
|
|
“Loss Proceeds Offer
Date”
|
4.16
|
|
“Loss Proceeds Offer
Price”
|
4.16
|
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-
|
“Paying
Agent”
|
2.04
|
|
“Permitted
Debt”
|
4.07
|
|
“Permitted
Payment”
|
4.08
|
|
“Purchase Money
Security Agreement”
|
1.01
|
|
“Registrar”
|
2.04
|
|
“Related
Proceedings”
|
13.09
|
|
“Restricted
Payments”
|
4.08
|
|
“Revocation”
|
4.15
|
|
“Xxxxxxxx-Xxxxx
Act”
|
4.03
|
|
“Senior
Agent”
|
1.01
|
|
“Specified
Courts”
|
13.09
|
|
“Surviving
Entity”
|
5.01
|
|
“Surviving Guarantor
Entity”
|
5.01
|
|
“Trustee”
|
8.05
|
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.
All terms
used in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by Commission rule under the TIA have the meanings so
assigned to them.
Section
1.04. Rules of
Construction.
Unless
the context otherwise requires:
(i) a term
has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(iii) “or” is
not exclusive;
(iv) words in
the singular include the plural, and words in the plural include the
singular;
(v) “herein”,
“hereof” and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision;
(vi) when the
words “includes” or “including” are used herein, they shall be deemed to be
followed by the words “without limitation”;
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(vii) all
references to Sections or Articles refer to Sections or Articles of this
Indenture unless otherwise indicated;
(viii) solely
for the purposes of Section 4.07, all obligations with respect to redemption,
repayment or other repurchase of any Disqualified Stock of any Person and the
amount of the liquidation preference of any Preferred Stock of such Person shall
be deemed “Indebtedness” of such Person and the amount thereof outstanding at
any time shall be (a) in the case of Disqualified Stock, as specified in the
last sentence of the definition thereof or (b) in the case of Preferred Stock,
(1) the maximum liquidation value of such Preferred Stock or (2) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
(ix) provisions
apply to successive events and transactions; and
(x) references
to sections of or rules under the Securities Act or the Exchange Act shall be
deemed to include substitute, replacement or successor sections or rules adopted
by the Commission from time to time.
ARTICLE
TWO
The
Notes
Section
2.01. Form and
Dating.
(a) General. The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A1 or A2 hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall be
dated the date of its authentication. The Notes shall be issued in registered,
global form without interest coupons and only shall be in minimum denominations
of $5,000 and integral multiples of $1,000 in excess thereof, subject to the
payment of interest on any Notes on any Interest Payment Date by issuance of PIK
Notes, in which case the aggregate principal amount of Notes issued in global
form previously authenticated hereunder may be increased by, or Additional Notes
constituting PIK Notes may be issued in, integral multiples of $1.00 in an
aggregate principal amount equal to the PIK Interest Amount with respect to such
Interest Payment Date for such Notes rounded up the nearest whole
dollar.
The terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, any 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 shall be substantially in
the form of Exhibit A1 or A2 attached 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 shall be substantially in the form of
Exhibit A1 attached 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 shall represent such of the outstanding Notes as
shall
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be
specified therein and each shall provide that it shall represent 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 or repurchases or issuances of Notes. 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 shall be
made by the Trustee in accordance with instructions given by the Holder thereof
as required by Section 2.07 hereof.
(c) Temporary Global
Notes. Notes offered and sold in reliance on Regulation S
shall be issued initially in the form of the Regulation S Temporary Global Note,
which shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee, as custodian for DTC in New York, New York, 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 shall be terminated upon the receipt by the
Trustee of (i) a written certificate from Euroclear and Clearstream certifying
that they have received certification of non-United States Beneficial Ownership
of 100% of the aggregate principal amount at maturity 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 shall take delivery
of a Beneficial Ownership interest in a 144A Global Note bearing a Private
Placement Legend, all as contemplated by Section 2.07(b) hereof), and (ii) an
Officers’ Certificate from the Company. Following the termination of the
Restricted Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
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.
(d) 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 Cedel Bank” and “Customer Handbook” of
Clearstream shall be applicable to transfers of beneficial interests in the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
that are held by Participants through Euroclear or Clearstream.
(e) Additional
Notes. Notwithstanding anything else herein, with respect to
any Additional Notes issued subsequent to the date of this Indenture, all
provisions of this Indenture shall be construed and interpreted to permit the
issuance of such Additional Notes and to allow such Additional Notes to become
fungible and interchangeable with the Initial Notes originally issued under this
Indenture. Indebtedness represented by Additional Notes shall be subject to the
covenants contained herein.
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Section
2.02. Execution and
Authentication.
(a) An
Executive Officer of the Company shall sign the Notes for the Company by manual
or facsimile signature. The Trustee shall authenticate (i) Initial Notes for
original issue on the Issue Date in the aggregate principal amount not to exceed
$25.0 million and (ii) Additional Notes for original issue after the Issue Date
in an aggregate principal amount not to exceed $15.0 million, in each case
upon a written order of the Company in the form of an Officers’ Certificate (an
“Authentication
Order”). In addition, each such Authentication Order shall
specify the amount of Notes to be authenticated, the date on which the Notes are
to be authenticated and whether the Notes are to be Initial Notes or Additional
Notes and, if Additional Notes, whether they are PIK Notes.
Upon the Trustee’s receipt of an
Authentication Order for authentication of PIK Notes to be delivered to Holders
of the Notes on an Interest Payment Date prior to Maturity of such Notes in
satisfaction of the portion of the aggregate installment of interest due and
payable on such Notes on such Interest Payment Date constituting the PIK
Interest Amount with respect to such Interest Payment Date for such Notes, the
Trustee shall authenticate for original issue Additional Notes constituting PIK
Notes (or increase the principal amount of any Global Notes previously
authenticated hereunder) in an aggregate principal amount equal to such PIK
Interest Amount with respect to such Interest Payment Date for such Notes, all
as specified in such Authentication Order. Each such Authentication
Order shall specify the respective amount of the Additional Notes constituting
PIK Notes to be authenticated or principal amount of Global Notes previously
authenticated to be increased and the Interest Payment Date on which the
Additional Notes constituting PIK Notes are to be authenticated or the principal
amount of Global Notes is to be increased. On any Interest Payment
Date on which the Company pays PIK Interest on any Notes by increasing the
principal amount of any Global Note previously authenticated hereunder, the
Trustee shall increase the principal amount of such Global Note by an amount
equal to the PIK Interest Amount with respect to such Interest Payment Date for
such Notes, rounded up to the nearest $1.00, to the credit of the Holders of
such Notes as of the relevant Regular Record Date for such Interest Payment
Date, pro rata in accordance with their interests, and an adjustment shall be
made on the books and records of the Registrar with respect to such Global Note
by the Registrar to reflect such increase. On any Interest Payment
Date on which the Company pays PIK Interest on any Notes by issuing
Additional Notes constituting PIK Notes, the Trustee shall deliver to the
Holders of such Notes as of the relevant Regular Record Date for such Interest
Payment Date Additional Notes constituting PIK Notes having an aggregate
principal amount equal to the PIK Interest Amount with respect to such Interest
Payment Date for such Notes, with the principal amount thereof rounded up to the
nearest $1.00.
The Trustee shall also authenticate for
original issuance any Additional Notes not constituting PIK Notes (or increase
the principal amount of any Global Note previously authenticated hereunder) in
the aggregate principal amount of such Additional Notes, all as specified in the
Authentication Order therefor.
(b) If an
Executive Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be
valid.
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(c) A Note
shall not be valid until authenticated by the manual signature of the Trustee.
Such signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
(d) The
aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture shall be limited to $40.0 million.
(e) 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.
(f) Each
Additional Note is an additional obligation of the Company and shall be governed
by, and entitled to the benefits of, this Indenture and shall be subject to the
terms of this Indenture, shall rank pari passu with and be
subject to the same terms (including the rate of interest from time to time
payable thereon) as all other Notes (except, as the case may be, with respect to
the issue date).
Section
2.03. Methods of Receiving
Payments on the Notes.
If a
Holder of Notes has given wire transfer instructions to the Company at least 10
Business Days before payment is due, the Company shall pay all principal,
interest and premium, if any, on that Holder’s Notes in accordance with those
instructions. All other payments on Notes, including payments on PIK Notes
(except payments on PIK Notes or Global Notes which shall be made as provided in
Sections 2.02 and 4.01) shall be made at the office or agency of the Paying
Agent and Registrar within the City and State of New York unless the Company
elects to make cash interest payments by check mailed to the Holders at their
addresses set forth in the register of Holders. Payments of interest to the
Trustee as Paying Agent, if the Trustee then acts as Paying Agent, with respect
to any Interest Payment Date (as defined in the Notes) shall be made by the
Company in immediately available funds for receipt by the Trustee one Business
Day prior to the such Interest Payment Date (or in no event later than 1:00 p.m.
Eastern Time on such Interest Payment Date).
Section
2.04. Registrar and Paying
Agent.
(a) The
Company shall 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 shall 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 prior notice to any Holder. The Company shall 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.
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(b) The
Company initially appoints DTC to act as Depositary with respect to the Global
Notes.
(c) 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.
(d) The
Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture, which agreement shall incorporate the provisions of the
TIA and implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee in writing, in advance,
of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the
Trustee shall act as such, and shall be entitled to appropriate compensation
therefor, pursuant to Section 7.07.
Section
2.05. Paying Agent to Hold Money
in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal
or premium, if any, or interest on the Notes, and shall 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 one of its Subsidiaries) shall have no further
liability for the money. If the Company or any of its Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
Section
2.06. Holder
Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the
Company shall otherwise comply with TIA Section 312(a).
Section
2.07. Transfer and
Exchange.
(a) Transfer and Exchange of
Global Notes. A Global Note may not be transferred as a whole
except 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 shall be exchanged by the Company for
Definitive Notes if (i) 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
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either
case, a successor Depositary is not appointed by the Company within 90 days
after the date of such notice from the Depositary; (ii) 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 (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act; or (iii) there shall have occurred and be continuing a Default or Event of
Default with respect to the Notes. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) 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 2.08 and
2.11 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.07 or
Section 2.08 or 2.11 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 2.07(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.07(b) 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 shall be effected through
the Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted Global
Notes shall 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 shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) 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 and any
Applicable Procedures; 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 (as defined
in Rule 902(k) of Regulation S) or for the account or benefit of a U.S. Person
(other than a “distributor” (as defined in Rule 902(d) of Regulation S)).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. Except as may be required by any Applicable
Procedures, no written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section
2.07(b)(i).
(ii) 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 2.07(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either (A)
(1) 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
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credited
a beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) if permitted
under Section 2.07(a) hereof, 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 (2)
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 (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act. 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 at maturity of the relevant Global Notes pursuant to
Section 2.07(i) hereof.
(iii) 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 2.07(b)(ii) above and the
Registrar receives the following:
(A) if the
transferee shall 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 or, if
permitted by the Applicable Procedures, item (3) thereof; and
(B) if the
transferee shall take delivery in the form of a beneficial interest in the
Regulation S Temporary Global Note or Regulation S Permanent Global Note, as the
case may be, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof.
(C) if the
transferee is required by the Applicable Procedures to 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 and certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(iv) 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
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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 2.07(b)(ii) above and
(A) the
Registrar receives the following:
|
(1)
|
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
|
|
(2)
|
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 clause (A), 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.
(v) Transfer or Exchange of
Beneficial Interests in an Unrestricted Global Note for Beneficial
Interests in a Restricted Global Note Prohibited. 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.
(i) Beneficial Interests in
Restricted Global Notes to Restricted Definitive
Notes. Subject to Section 2.07(a) hereof, 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;
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(B) if such
beneficial interest is being transferred to a QIB in accordance with Rule 144A
under the Securities Act, 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 (as defined in Section 902(h) of Regulation S) in accordance with
Rule 903 or Rule 904 under the Securities Act, 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
under the Securities Act, 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)(d)
thereof, if applicable; or
(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;
the
Trustee shall cause the aggregate principal amount of the applicable Global Note
to be reduced accordingly pursuant to Section 2.07(i) 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 2.07(c)(i) 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
2.07(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in
Regulation S Temporary Global Note to Definitive
Notes. Notwithstanding Sections Section 2.07(c)(i)(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
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thereof
in the form of a Definitive Note prior to (x) the expiration of the Restricted
Period and (y) 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.
(iii) Beneficial Interests in
Restricted Global Notes to Unrestricted Definitive
Notes. Subject to Section 2.07(a) hereof, 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) the
Registrar receives the following:
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(1)
|
if
the Holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Definitive Note that
does not bear the Private Placement Legend, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
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|
(2)
|
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 Definitive Note that does not bear the
Private Placement Legend, 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 (iii), 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.
Upon
satisfaction of any of the conditions of any of the clauses of this Section
2.07(c)(iii), the Company shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver a Definitive Note that does not bear the Private Placement Legend in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the Depositary
and the applicable Participant or Indirect Participant on behalf of such holder,
and the Trustee shall reduce or cause to be reduced in a corresponding amount
pursuant to Section 2.07(i), the aggregate principal amount of the applicable
Restricted Global Note.
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(iv) Beneficial Interests in
Unrestricted Global Notes to Unrestricted Definitive
Notes. Subject to Section 2.07(a) hereof, 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 2.07(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.07(i) 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 pursuant to this Section 2.07(c)(iv) 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 pursuant to this Section 2.07(c)(iv) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of
Definitive Notes for Beneficial Interests.
(i) 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 under the Securities Act, 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 (as defined in Rule 902(k) of Regulation S) in accordance
with Rule 903 or Rule 904 under the Securities Act, 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
under the Securities Act, a
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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
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable; or
(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;
the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased in a corresponding amount pursuant to Section 2.07(i) hereof, 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,
and in the case of clause (C) above, the Regulation S Global Note and in all
other cases the IAI Global Note.
(ii) 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) the
Registrar receives the following:
|
(1)
|
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
|
|
(2)
|
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 clause (A), 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.
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Upon
satisfaction of the conditions in this Section 2.07(d)(ii), the Trustee shall
cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) 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 shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased in a
corresponding amount pursuant to Section 2.07(i) hereof the aggregate principal
amount of one of the Global Notes.
(iv) Transfer or Exchange of
Unrestricted Definitive Notes to Beneficial Interests in Restricted
Global Notes Prohibited. An Unrestricted Definitive Note may not be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, beneficial interests in a Restricted Global Note.
(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 2.07(e), the Registrar shall register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall 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 shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.07(e).
(i) 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 shall be made pursuant to Rule 144A under the Securities Act, 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 shall 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 shall 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.
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(ii) Restricted Definitive Notes
to Unrestricted Definitive Notes. Any Restricted Definitive
Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of
an Unrestricted Definitive Note only if
(A) the
Registrar receives the following:
|
(1)
|
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
|
|
(2)
|
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 clause (A), if the Registrar so requests, an
Opinion of Counsel in form reasonably acceptable to the Company 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.
Upon
satisfaction of the conditions of any of the clauses of this Section
2.07(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note and
the Company shall execute, and upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
an Unrestricted Definitive Note in the appropriate aggregate principal amount to
the Person designated by the holder of such prior Restricted Definitive Note in
instructions delivered to the Registrar by such holder.
(iii) 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) Issue
Date. Upon the Issue Date, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate (A) one or more Unrestricted Global Notes in an
aggregate principal amount of Initial Notes issued pursuant to 11 U.S.C. Section
1145 to Persons not deemed an “underwriter” within the meaning of 11 U.S.C.
Section 1145 or an “affiliate” or “control person” within the meaning of the
Securities Act.
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(g) Legends. The
following legends shall 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.
(i) Private Placement
Legend. Except as permitted 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
AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
ANY STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON,
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR
OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION
TERMINATION DATE”), EXCEPT THAT THE NOTES AND GUARANTEES MAY BE
TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO
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CLAUSE
(E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THIS NOTE
AND THE GUARANTEES ENDORSED HEREON ARE SUBJECT TO THE TERMS OF THE SUBORDINATION
AGREEMENT (AS DEFINED IN THE INDENTURE REFERRED TO HEREIN).
Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or
(f) of this Section 2.07 (and all Notes issued in exchange therefor or
substitution thereof) (and any note not required by law to have such a legend),
shall not bear the Private Placement Legend.
In
addition, the foregoing legend may be adjusted for future issuances in
accordance with applicable law.
(ii) Global Note Legend.
Each Global Note shall 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 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(h) Regulation S Temporary
Global Note Legend. The Regulation S Temporary Global Note shall bear a
legend in substantially the following form:
EXCEPT AS
SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S TEMPORARY
GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE REGULATION S PERMANENT
GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING
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AN
INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40-DAY DISTRIBUTION
COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(B)(2) OF REGULATION S
UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY
SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY
NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION
THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING SUCH 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP IN THIS REGULATION S
TEMPORARY GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR
SYSTEM OR CLEARSTREAM LUXEMBOURG, A SOCIETE ANONYME AND ONLY (1) TO THE COMPANY,
(2) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE
UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF THE CASES (1) THROUGH (4) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER JURISDICTIONS.
HOLDERS OF INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE WILL NOTIFY ANY
PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN
APPLICABLE.
BENEFICIAL
INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY BE EXCHANGED FOR
INTERESTS IN A RESTRICTED GLOBAL NOTE ONLY IF (1) SUCH EXCHANGE OCCURS IN
CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE WITH RULE 144A, AND (2)
THE TRANSFEROR OF THE REGULATION S TEMPORARY GLOBAL NOTE FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT THE REGULATION S GLOBAL NOTE IS BEING TRANSFERRED (A) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS OWN
ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A AND (C) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
BENEFICIAL
INTERESTS IN A GLOBAL TRANSFER RESTRICTED NOTE MAY BE TRANSFERRED TO A PERSON
WHO TAKES DELIVERY
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IN THE
FORM OF AN INTEREST IN THE REGULATION S GLOBAL NOTE, WHETHER BEFORE OR AFTER THE
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR
FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO
THIS CERTIFICATE) TO THE EFFECT THAT IF SUCH TRANSFER IS BEING MADE IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S OR RULE 144 (IF AVAILABLE) AND
THAT, IF SUCH TRANSFER OCCURS PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION
COMPLIANCE PERIOD, THE INTEREST TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER
THROUGH EUROCLEAR SYSTEM OR CLEARSTREAM LUXEMBOURG, A SOCIETE
ANONYME.
(i) 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 shall be returned to or retained and canceled by the
Trustee in accordance with Section 2.12 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who shall take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such
increase.
(j) General Provisions Relating
to Transfers and Exchanges.
(i) To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s
order or at the Registrar’s request.
(ii) No
service charge shall 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 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 2.11, 3.06, 4.11, 4.21 and 9.05
hereof).
(iii) The
Registrar shall not be required to register the transfer of or exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(iv) All
Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid and
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legally
binding 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.
(v) The
Company shall not 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 so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a Regular
Record Date and the next succeeding Interest Payment Date.
(vi) 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.
(vii) The
Trustee shall authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.
(viii) All
certifications, certificates and Opinions of Counsel required to be submitted to
the Registrar pursuant to this Section 2.07 to effect a registration of transfer
or exchange may be submitted by facsimile with the original to follow by first
class mail.
Section
2.08. Replacement
Notes.
(a) If any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to their satisfaction of the destruction, loss or theft of any
Note, the Company shall issue and the Trustee, upon receipt of an Authentication
Order, shall 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. The
Company may charge for their expenses in replacing a Note.
(b) Every
replacement Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
Section
2.09. Outstanding
Notes.
(a) 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,
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and those
described in this Section as not outstanding. Except as set forth in Section
2.10 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
(b) If a Note
is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a protected purchaser.
(c) 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.
(d) If the
Paying Agent (other than the Company, a Subsidiary of the Company or an
Affiliate of any of the foregoing) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date and is not prohibited from
paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.
Section
2.10. Treasury
Notes.
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent or notice, Notes owned by the
Company, or by any Subsidiary shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent or notice, only
Notes that the Trustee knows are so owned shall be so disregarded. To
the extent permitted by the TIA, certain provisions of the TIA applicable to the
foregoing have been expressly excluded and are covered by Sections 6.04 and 6.05
hereof.
The
aggregate principal amount of the Notes, at any date of determination, shall be
the principal amount of the Notes (including any outstanding Additional Notes
issued (including by any increase in the principal amount of any Global Note
previously authenticated) hereunder) outstanding at such date of determination
(as determined in accordance with this Section 2.10 and Section
2.09). With respect to any matter requiring consent, waiver, approval
or other action of the Holders of a specified percentage of the principal amount
of all the Notes then outstanding, such percentage shall be calculated, on the
relevant date of determination, by dividing (a) the principal amount, as of such
date of determination, of Notes held by Holders that have so consented by (b)
the aggregate principal amount, as of such date of determination, of the Notes
then outstanding, in each case, as determined in accordance with this Section
2.10 and Section 2.09. Any such calculation made pursuant to this
Section 2.10 shall be made by the Company and delivered to the Trustee pursuant
to an Officers’ Certificate.
Section
2.11. Temporary
Notes.
(a) Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Notes in exchange for temporary Notes.
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(b) Holders
of temporary Notes shall be entitled to all of the benefits of this
Indenture.
Section
2.12. Cancellation.
The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to
them for registration of transfer, exchange or payment. The Trustee and no one
else shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall dispose of canceled Notes in
accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention
requirement of the Exchange Act). Certification of the disposition of all
canceled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that they have paid or that have been delivered to the
Trustee for cancellation.
Section
2.13. Defaulted
Interest.
If the
Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in cash in any lawful manner
plus, to the extent lawful, interest payable in cash on the defaulted
interest, to the Persons who are Holders on the Regular Record Date for the
interest payment or a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company shall 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 shall fix or cause
to be fixed each such special record date and payment date, provided that no
such special record date shall 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) shall 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.
Section
2.14. CUSIP
Numbers.
The
Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the “CUSIP”
numbers.
Section
2.15. [Intentionally
Omitted].
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Section
2.16. Issuance of Additional
Notes.
The
Company shall be entitled, subject to its compliance with Section 4.01 and other
applicable provisions hereof, to issue Additional Notes under this Indenture
which shall have identical terms as the Initial Notes issued on the date hereof,
other than with respect to the date of issuance and issue price. The
Initial Notes issued on the date hereof and any Additional Notes shall be
treated as a single class for all purposes under this Indenture, including
directions, waivers, amendments, consents, redemptions and offers to
purchase.
With
respect to any Additional Notes, the Company shall set forth in a Board
Resolution and an Officers’ Certificate, a copy of each of which shall be
delivered to the Trustee, the following information:
(a) the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;
(b) the issue
price, the issue date and the CUSIP and/or ISIN number of such Additional Notes;
provided, however, that no Additional
Notes may be issued at a price that would cause such Additional Notes not to be
fungible for U.S. federal income tax purposes with the Notes; and
(c) whether
such Additional Notes shall be subject to the restrictions on transfer set forth
in Section 2.07 hereof relating to Restricted Global Notes and Restricted
Definitive Notes.
Section
2.17. Deposit of
Moneys.
Prior to
1:00 p.m. New York, New York time on each Interest Payment Date and the Maturity
Date, the Company shall deposit with the Paying Agent U.S. Legal Tender
sufficient to make payments, if any, of any principal, premium and interest
(other than any interest payable as PIK Interest on such Interest Payment Date
in accordance with Section 4.01(d)) due on such Interest Payment Date or the
Maturity Date, as the case may be.
Section
2.18. Computation of
Interest.
Interest
on the Notes shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
ARTICLE
THREE
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 shall furnish to the Trustee, at least 30 days but not
more than 60 days before a redemption date (or such shorter period as allowed by
the Trustee), an Officers’ Certificate setting forth (i) the clause of this
Indenture pursuant to which the
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redemption
shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
Section
3.02. Selection of Notes to Be
Redeemed.
(a) If less
than all of the Notes are to be redeemed or purchased in an offer to purchase at
any time, the Trustee shall select the Notes to be redeemed or purchased among
the Holders of the Notes not more than 60 days prior to the redemption date, or
otherwise in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and reasonable
and in any case in accordance with the rules and procedures of the applicable
Depositary. In the event of partial redemption by lot, the particular Notes to
be redeemed shall be selected, unless otherwise provided herein, not less than
30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
(b) The
Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount at maturity thereof to be redeemed. No Notes in amounts of
$5,000 or less shall be redeemed in part. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger than $5,000.
Notes and portions of Notes selected shall be in amounts of $5,000 or whole
multiples of $1,000 in excess thereof; except that if all of the Notes of a
Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
Redemptions pursuant to Section 3.07 hereof shall be made on a pro rata basis or on as
nearly a pro rata
basis as practicable (subject to the provisions of DTC or other
depositary).
Section
3.03. Notice of
Redemption.
(a) At least
30 days but not more than 60 days before a redemption date, the Company shall
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 and send a copy
to the Trustee at the same time.
The
notice shall identify the Notes (including CUSIP number(s)) to be redeemed and
shall state:
(i) the
redemption date;
(ii) the
appropriate method for calculation of the redemption price, but need not include
the redemption price itself; the actual redemption price shall be set forth in
an Officers’ Certificate delivered to the Trustee no later than two (2) Business
Days prior to the redemption date;
(iii) if any
Note is being redeemed in part, the portion of the principal amount at maturity
of such Note to be redeemed and that, after the redemption
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date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion of the original Note shall be issued in the name of the
Holder thereof upon cancellation of the original Note;
(iv) the name
and address of the Paying Agent;
(v) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price and become due on the date fixed for
redemption;
(vi) that,
unless the Company defaults in making such redemption payment, interest, if any,
on Notes called for redemption ceases to accrue on and after the redemption
date;
(vii) the
paragraph of the Notes and/or section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(viii) 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.
(b) At the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date (unless the Trustee shall have agreed to a shorter period), 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.
The notice, if mailed in the manner provided herein shall be presumed to have
been given, whether or not the Holder receives such notice.
(c) If any of
the Notes to be redeemed are in the form of a Global Note, then the Company
shall modify such notice to the extent necessary to accord with the procedures
of the Depositary applicable to redemption.
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 or
subject to conditions precedent. Any defect in or any failure to give notice
prescribed by this paragraph shall not affect the validity of the proceedings
for the redemption of any Note.
Section
3.05. Deposit of Redemption
Price.
(a) One
Business Day prior to the redemption date the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of
and accrued interest on all Notes to be redeemed on that date. The Trustee or
the Paying Agent shall 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 price of, and accrued interest on, all Notes to
be redeemed.
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(b) If the
Company complies with the provisions of the preceding paragraph, on and after
the redemption date, interest shall cease to accrue on the Notes or the portions
of Notes called for redemption. If a Note is redeemed on or after a Regular
Record Date but on or prior to the related Interest Payment Date, then any
accrued and unpaid interest shall be paid in cash to the Holder in whose name
such Note was registered at the close of business on such Regular Record Date.
If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
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 in
Part.
Upon
surrender of a Note that is redeemed in part, the Company shall issue and the
Trustee shall authenticate for the Holder at the expense of the Company a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered. No Notes in denominations of $5,000 or less shall be redeemed in
part.
Section
3.07. Optional
Redemption.
(a) Commencing
on the Issue Date, the Company may redeem for cash all or a portion of the
Notes, on not less than 30 nor more than 60 days’ prior notice, in amounts of
$5,000 or whole multiples of $1,000 in excess thereof at the following
redemption prices (expressed as percentages of the principal amount) set forth
below plus accrued and unpaid interest, if any, thereon, to the applicable
redemption date (subject to the rights of holders of record on the relevant
Regular Record Dates to receive interest due on an Interest Payment Date), if
redeemed during the twelve-month periods indicated below (with Year 1 commencing
on the Issue Date):
|
Redemption
Price
|
||||
|
Year
1
|
105.00%
|
|||
|
Year
2
|
103.00%
|
|||
|
Year
3
|
101.00%
|
|||
|
Year
4 thereafter
|
100.00%
|
(b) 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.
The
Company is not required to make mandatory redemption or sinking fund payments
with respect to the Notes.
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Section
3.09. Application of Trust
Money.
All money
deposited with the Trustee pursuant to Section 12.02 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, 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.
Section
3.10. Company May Acquire
Notes.
The
Company or its Affiliates (or any Person acting on behalf of the Company or its
Affiliates) may at any time and from time to time acquire the Notes by means
other than redemption, including by tender offer, open market purchases,
negotiated transactions or otherwise, so long as such acquisition is not
prohibited by applicable securities laws or regulations or the terms of this
Indenture. In accordance with, and subject to, Section 2.12, the
Company may deliver such acquired Notes to the Trustee for
cancellation.
ARTICLE
FOUR
Covenants
Section
4.01. Payment of
Notes.
(a) The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. If a payment date is not a Business Day, payment
may be made on the next succeeding day that is a Business Day, and no interest
shall accrue on such payment for the intervening period.
(b) The
principal of, or premium, if any, or interest on the Notes payable in cash shall
be considered paid on the date due if the Paying Agent (other than the Company
or an Affiliate of the Company) holds at 1:00 p.m. New York, New York time on
that date U.S. Legal Tender designated for and sufficient to pay all principal,
premium, if any, and interest on the Notes then due. The portion of
an installment of interest, if any, on the Notes payable as PIK Interest on any
Interest Payment Date shall be considered paid on such date if on such date (1)
to the extent such PIK Interest is paid by issuance of Additional Notes
constituting PIK Notes, PIK Notes having an aggregate principal amount equal to
the PIK Interest Amount with respect to such Interest Payment Date for such
Notes have been executed and delivered, together with an Authentication Order in
accordance with Section 2.02, to the Trustee for authentication and delivery to
the Holders of such Notes in accordance with the terms of this Indenture and (2)
to the extent such PIK Interest is paid by increasing the principal amount of
Global Notes previously authenticated hereunder, the Company has directed the
Trustee in writing to increase the principal amount of such Global Notes
previously authenticated by the PIK Interest Amount with respect to such
Interest Payment Date for such Notes. The portion of any installment
of interest on Notes payable as PIK Interest that is not paid on the date it is
due shall be payable solely in cash.
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(c) Not less
than five Business Days prior to each Interest Payment Date with respect to the
Notes, so long as such Interest Payment Date is prior to Maturity, the Company
shall be entitled to deliver a notice to the Trustee specifying (i) that the
Company has elected, so long as such Interest Payment Date is prior to Maturity,
not to pay the entire amount of interest due on such Interest Payment Date in
cash, (ii) the respective aggregate amounts of interest to be paid in cash and
as PIK Interest as determined in accordance with Section 4.01(d) and (iii) the
respective aggregate amounts of PIK Interest to be paid through increases in the
aggregate principal amount of Global Notes previously authenticated hereunder or
through the issuance of Additional Notes constituting PIK Notes. If
the Company does not deliver such notice with respect to any such Interest
Payment Date within the time period specified in the preceding sentence, the
Company shall be deemed to have elected to pay the entire amount of interest due
on such Interest Payment Date in cash. On the relevant Interest
Payment Date for any Note as to which such notice has been timely given, so long
as such Interest Payment Date is prior to Maturity, the Trustee shall record
increases in the Global Notes or authenticate and deliver Additional Notes
constituting PIK Notes, as appropriate, in an aggregate principal amount equal
to the PIK Interest Amount with respect to such Interest Payment Date for such
Notes. The Company shall deliver an Authentication Order to the
Trustee in accordance with Section 2.02 upon issuance of PIK Notes in payment of
PIK Interest.
(d) Interest
shall accrue on the principal amount of any outstanding Notes at a rate of 15%
per annum and be payable solely in cash; provided, however, that, if with
respect to any Interest Payment Date that occurs prior to Maturity of any Notes,
the Company has duly elected pursuant to Section 4.01(c) not to pay the entire
installment of interest due on such Interest Payment Date in cash, and if (but
only if) the Company pays on such Interest Payment Date the entire installment
of interest on such designated Notes due on such Interest Payment Date, the
portion of such installment equal to the PIK Interest Amount with respect to
such Interest Payment Date (i.e., the designated portion
equal to up to one-third of the aggregate amount thereof) shall be payable by
issuance of PIK Notes in accordance with Section 2.02(a) and the remainder of
such installment shall be payable in cash.
(e) The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal in cash at the rate equal to 2%
per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; they shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
(f) Notwithstanding
anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other
similar taxes imposed by the United States of America from principal or interest
payments hereunder.
Section
4.02. Maintenance of Office or
Agency.
(a) The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency (which may be an office of the Trustee or an agent of the
Trustee, Registrar or co-Registrar) where Notes may be surrendered for
registration of transfer or for
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exchange
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
(b) The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of their
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
(c) The
Company hereby designates the office of U.S. Bank Trust National Association at
000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, as one such office or
agency of the Company in accordance with Section 2.04 of this
Indenture.
Section
4.03. Reports.
So long
as any of the Notes remain outstanding, the Company and the Guarantors shall
furnish to the Trustee, the Holders of the Notes and to prospective purchasers
of the Notes, upon their request, the information required pursuant to Rule
144A(d)(4) under the Securities Act. The Company will also comply
with the provisions of Section 314(a) of the TIA, to the extent such Section
314(a) should become applicable to it.
Section
4.04. Compliance
Certificate.
(a) The
Company and each Guarantor shall deliver to the Trustee, within 90 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
their obligations under this Indenture, without regard to notice or grace
periods, 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 their obligations under this Indenture and are not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred and be continuing, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) 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, premium, if any, or interest, if any,
on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto.
(b) To the
extent set forth in Section 314(a) of the TIA, the year-end financial statements
delivered pursuant to Section 4.03 above shall be accompanied by a written
statement
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of the
independent public accountants (which shall be a firm of established national
reputation) of the Company (or Parent, if applicable) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that the Company has
violated any provisions of this Article Four or Article Five hereof (insofar as
they relate to accounting matters) or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The
Company shall, so long as any of the Notes are outstanding, deliver to the
Trustee, within five Business Days of the occurrence 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 shall pay, and shall cause each of their respective Subsidiaries to pay,
prior to delinquency, any material taxes, assessments, and governmental levies
except such as are contested in good faith and by 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 covenant (to the extent that they may
lawfully do so) that they shall 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 they may lawfully do so) hereby
expressly waive all benefit or advantage of any such law, and covenant that they
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been
enacted.
Section
4.07. Incurrence of Indebtedness
and Issuance of Disqualified Stock.
(a) The
Company shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any
manner become directly or indirectly liable for the payment of or otherwise
incur, contingently or otherwise (collectively, “incur”), any Indebtedness
(including any Acquired Debt) and the Company shall not, and shall not cause or
permit any of its Restricted Subsidiaries to, issue any Disqualified Stock;
provided, however, that, if no Default
or Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of this Indebtedness, the Company and the
Guarantors may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, if the Company’s Consolidated Fixed Charge Coverage Ratio
for the Company’s most recent four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
Indebtedness is incurred or such Disqualified Stock is issued was at least equal
to or greater than 2:1.
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(b) Notwithstanding
the foregoing, the Company and, to the extent specifically set forth below, the
Restricted Subsidiaries may incur each and all of the following (collectively,
the “Permitted
Debt”):
(1) Indebtedness
of the Company and the Guarantors under a Credit Facility in an aggregate
principal amount at any one time outstanding not to exceed $37.5 million under
any term loans made pursuant thereto or under any revolving credit facility or
in respect of letters of credit thereunder, minus all principal payments made in
respect of any term loans or minus the amount by which any commitments
thereunder are permanently reduced, in each case, from the proceeds or one of
more Asset Sales pursuant to clause (b)(i) of Section 4.11 hereof;
(2) Indebtedness
of the Company or any Guarantor pursuant to the Notes (including, for the
avoidance of doubt, all Additional Notes) and any Guarantee of the Notes
(including, for the avoidance of doubt, all Additional Notes);
(3) Indebtedness
of the Company or any Guarantor outstanding on the date of this Indenture, and
not otherwise referred to in this definition of “Permitted
Debt;”
(4) the
incurrence by the Company or any of its Restricted Subsidiaries of Intercompany
Debt; provided, however, that:
(a) if the
Company or any Guarantor is the obligor on such Intercompany Debt and the payee
is not the Company or a Guarantor, such Intercompany Debt must be expressly
subordinated 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 Guarantee, in the
case of a Guarantor; and
(b) (i) any
subsequent issuance or transfer of Capital Stock that results in any such
Intercompany Debt being held by a Person other than the Company or a Restricted
Subsidiary and (ii) any sale or other transfer of any such Intercompany Debt to
a Person that is not any of the Company, a Guarantor or, in the case where the
payor on such Intercompany Debt is not the Company or a Guarantor, any
Restricted Subsidiary will be deemed, in each case, to constitute an incurrence
of such Intercompany Debt by the Company or such Restricted Subsidiary, as the
case may be, that was not permitted by this clause (4);
(5) guarantees
by the Company or any Restricted Subsidiary of Indebtedness of the Company or
any Restricted Subsidiary which is permitted to be incurred under this
Indenture; provided
that in the case of a guarantee of any Restricted Subsidiary that is not a
Guarantor, such Restricted Subsidiary complies with Section 4.12 hereof; provided further that if the
Indebtedness being guaranteed is subordinated in right of payment to the Notes
or a Note Guarantee, then such Guarantee shall be subordinated in right of
payment to the same extent as the Indebtedness guaranteed;
(6) obligations
of the Company or any Restricted Subsidiary entered into in the ordinary course
of business and not for speculative purposes:
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(a) pursuant
to Interest Rate Agreements designed to protect the Company or any Restricted
Subsidiary against fluctuations in interest rates in respect of Indebtedness of
the Company or any Restricted Subsidiary as long as such obligations do not
exceed the aggregate principal amount of such Indebtedness then
outstanding,
(b) under any
Currency Hedging Agreements relating to (1) Indebtedness of the Company or any
Restricted Subsidiary and/or (2) obligations to purchase or sell assets or
properties, in each case, incurred in the ordinary course of business of the
Company or any Restricted Subsidiary; provided, however, that such Currency
Hedging Agreements do not increase the Indebtedness or other obligations of the
Company or any Restricted Subsidiary outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder or
(c) under any
Commodity Price Protection Agreements which do not increase the amount of
Indebtedness or other obligations of the Company or any Restricted Subsidiary
outstanding other than as a result of fluctuations in commodity prices or by
reason of fees, indemnities and compensation payable thereunder;
(7) Indebtedness
of the Company or any Restricted Subsidiary represented by Capital Lease
Obligations or Purchase Money Obligations or other Indebtedness incurred or
assumed in connection with the acquisition or development of real or personal,
movable or immovable, property in each case incurred for the purpose of
financing or refinancing all or any part of the purchase price or cost of
construction or improvement of property (real or personal), plant or equipment
used in the business of the Company or any of its Restricted Subsidiaries
(whether through the direct acquisition of such assets or the acquisition of
Capital Stock of any Person owning such assets), in an aggregate principal
amount pursuant to this clause (7) not to exceed the greater of (x) $5.0 million
and (y) 5.0% of Consolidated Net Tangible Assets outstanding at any time; provided that the principal
amount of any Indebtedness permitted under this clause (7) did not in each case
at the time of incurrence exceed the Fair Market Value, as determined by the
Company in good faith, of the acquired or constructed asset or improvement so
financed;
(8) Indebtedness
of the Company or any Restricted Subsidiary in connection with (a) one or more
standby letters of credit issued by the Company or a Restricted Subsidiary in
the ordinary course of business consistent with past practice and (b) other
letters of credit, surety, performance, appeal or similar bonds, bankers’
acceptances, completion guarantees or similar instruments pursuant to
self-insurance and workers’ compensation obligations; provided that, in each case
contemplated by this clause (8), upon the drawing of such letters of credit or
other instruments, such obligations are reimbursed within 30 days following such
drawing;
(9) Indebtedness
of the Company or any Restricted Subsidiary arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
against
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insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within three Business Days of
incurrence;
(10) Indebtedness
of the Company to the extent the net proceeds thereof are promptly deposited to
defease or satisfy the Notes pursuant to Article Eight or Article
Twelve;
(11) Permitted
Refinancing Indebtedness of the Company or any of its Restricted Subsidiaries
issued in exchange for, or the net proceeds of which are used to renew, extend,
substitute, refund, refinance or replace, any Indebtedness, including any
Disqualified Stock, incurred pursuant to paragraph (a) of this Section 4.07 and
clauses (2), (3) and this clause (11) of this paragraph (b);
(12) the
incurrence by the Company and any of its Restricted Subsidiaries of Indebtedness
arising from agreements of the Company or such Restricted Subsidiary providing
for indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or Capital Stock of the Company or a Restricted Subsidiary,
other than guarantees of Indebtedness incurred by any Person acquiring all or
any portion of such business, assets or a Subsidiary for the purpose of
financing such acquisition;
(13) the
issuance of Disqualified Stock or Preferred Stock by any of the Company’s
Restricted Subsidiaries issued to the Company or another Restricted Subsidiary;
provided, however, that if the issuer
of such shares of Disqualified Stock or Preferred Stock is a Restricted
Subsidiary that is not a Guarantor and the purchaser of such shares is the
Company or a Guarantor, such Investment must be permitted as a Permitted
Investment described in clause 1(b) of the definition thereof and:
(a) any
subsequent issuance or transfer of Capital Stock that results in any such
Disqualified Stock or Preferred Stock being held by a Person other than the
Company or a Restricted Subsidiary; and
(b) any sale
or other transfer of any such Disqualified Stock or Preferred Stock to a Person
that is not any of the Company, a Guarantor or, in the case where the issuer of
such Disqualified Stock or Preferred Stock is not a Guarantor, any Restricted
Subsidiary,
will be
deemed, in each case, to constitute an issuance of such Disqualified Stock or
Preferred Stock by such Restricted Subsidiary that was not permitted by this
clause (13); and
(14) Indebtedness
of the Company or any Restricted Subsidiary in addition to that described in
clauses (1) through (13) above, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any such Indebtedness, so long as the
aggregate principal amount, or accreted value, as applicable, of all such
Indebtedness shall not exceed $7.0 million outstanding at any one time in the
aggregate.
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(c) Notwithstanding
the foregoing, the Company will not, and will not permit any of its Restricted
Subsidiaries to, incur secured Indebtedness (including Indebtedness under
mortgages and Capital Lease Obligations) in excess of $82.5 million outstanding
at any one time in the aggregate.
(d) For
purposes of determining compliance with this Section 4.07, in the event that an
item of Indebtedness meets the criteria of more than one of the types of
Indebtedness permitted by this Section 4.07, the Company in its sole discretion
shall classify or reclassify such item of Indebtedness and only be required to
include the amount of such Indebtedness as one of such types; provided that Indebtedness
under the Credit Agreement which is in existence following the Issue Date, and
any renewals, extensions, substitutions, refundings, refinancings or
replacements thereof, in an amount not in excess of the amount permitted to be
incurred pursuant to clause (1) of paragraph (b) above, shall be deemed to have
been incurred pursuant to clause (1) of paragraph (b) above rather than
paragraph (a) above.
(e) Indebtedness
permitted by this Section 4.07 need not be permitted solely by reference to one
provision permitting such Indebtedness but may be permitted in part by one such
provision and in part by one or more other provisions of this covenant
permitting such Indebtedness.
(f) Accrual
of interest, accretion or amortization of original issue discount and the
payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, and the accretion or payment of dividends on any
Disqualified Stock or Preferred Stock in the form of additional shares of the
same class of Disqualified Stock or Preferred Stock will not be deemed to be an
incurrence of Indebtedness for purposes of this Section 4.07; provided, in each
such case, that the amount thereof as accrued is included in the calculation of
the Consolidated Fixed Charge Coverage Ratio of the Company.
(g) For
purposes of determining compliance with any dollar-denominated restriction on
the incurrence of Indebtedness denominated in a foreign currency, the
dollar-equivalent principal amount of such Indebtedness incurred pursuant
thereto shall be calculated based on the relevant currency exchange rate in
effect on the date that such Indebtedness was incurred.
(h) Notwithstanding
any other provision of this Section 4.07, the maximum amount of Indebtedness
that the Company or any Restricted Subsidiary may incur pursuant to this Section
4.07 will not be deemed to be exceeded solely as a result of fluctuations in
exchange rates or currency values.
(i) If
Indebtedness is secured by a letter of credit that serves only to secure such
Indebtedness, then the total amount deemed incurred shall be equal to the
greater of (x) the principal of such Indebtedness and (y) the amount that may be
drawn under such letter of credit.
(j) The
amount of Indebtedness issued at a price less than the amount of the liability
thereof shall be determined in accordance with GAAP.
(k) 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
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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 Guarantees 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 as a result of being unsecured, having a
junior lien position, having a later maturity date, or being junior to such
other indebtedness with respect to order of payments or application of
funds.
Section
4.08. Restricted
Payments.
(a) The
Company shall not, and shall not cause or permit any Restricted Subsidiary to,
directly or indirectly:
(1) pay any
dividend on, or make any distribution to holders of, any shares of the Company’s
Capital Stock (other than dividends or distributions payable solely in shares of
its Qualified Capital Stock or in options, warrants or other rights to acquire
shares of such Qualified Capital Stock);
(2) purchase,
redeem, defease or otherwise acquire or retire for value, directly or
indirectly, the Company’s Capital Stock or any Capital Stock of any direct or
indirect parent of the Company;
(3) make any
principal payment on or with respect to, or repurchase, redeem, defease, retire
or otherwise acquire for value, prior to any scheduled principal payment,
sinking fund payment or maturity, any Subordinated Indebtedness except a
purchase, repurchase, redemption, defeasance or retirement within one year of
final maturity thereof;
(4) pay any
dividend or distribution on account of any Capital Stock of any Restricted
Subsidiary to any Person (other than (a) to the Company or any of its Wholly
Owned Restricted Subsidiaries or (b) dividends or distributions made by a
Restricted Subsidiary on a pro rata basis to all stockholders of such Restricted
Subsidiary); or
(5) make any
Investment in any Person (other than any Permitted Investments);
(any of
the foregoing actions described in clauses (a)(1) through (a)(5) above, other
than any such action that is a Permitted Payment (as defined below),
collectively, “Restricted
Payments”), unless
(1) immediately
before and immediately after giving effect to such proposed Restricted Payment
on a pro forma basis, no Default or
Event of Default shall have occurred and be continuing;
(2) immediately
before and immediately after giving effect to such Restricted Payment on a pro forma basis, the Company
could incur $1.00 of additional Indebtedness (other than Permitted Debt) under
paragraph (a) of Section 4.07; and
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(3) after
giving effect to the proposed Restricted Payment, the aggregate amount of all
such Restricted Payments declared or made after the date of this Indenture and
all Designation Amounts does not exceed the sum of:
(A) 50% of
the aggregate Consolidated Net Income of the Company accrued on a cumulative
basis during the period beginning on the date of this Indenture and ending on
the last day of the Company’s most recently ended fiscal quarter for which
internal financial statements are available at the time of the Restricted
Payment (or, if such aggregate cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss); plus
(B) 100% of
the aggregate net proceeds (including the Fair Market Value of property)
received after the date of this Indenture by the Company as a contribution to
its common equity capital from any direct or indirect parent of the Company
(except, in each case, to the extent such proceeds are used to purchase, redeem
or otherwise retire Capital Stock or Subordinated Indebtedness as set forth in
clause (2) or (3) of paragraph (b) below); plus
(C) (i) in
the case of the disposition or repayment of any Investment constituting a
Restricted Payment (including any Investment in an Unrestricted Subsidiary) made
after the date of this Indenture, an amount (to the extent not included in
Consolidated Net Income) equal to the lesser of the return of capital with
respect to such Investment and the initial amount of such Investment, in either
case, less the cost of the disposition of such Investment and net of taxes,
and
(ii) in the
case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary
(as long as the designation of such Subsidiary as an Unrestricted Subsidiary was
deemed a Restricted Payment), the Fair Market Value of the Company’s interest in
such Subsidiary; provided, however, that if such amount
exceeds the amount of the Restricted Payment deemed made at the time the
Subsidiary was designated as an Unrestricted Subsidiary, then only 50% of such
excess may be added for purposes of this clause (C)(ii); plus
(D) any
amount which previously qualified as a Restricted Payment on account of any
guarantee entered into by the Company or any Restricted Subsidiary; provided that such guarantee
has not been called upon and the obligation arising under such guarantee no
longer exists.
(b) Notwithstanding
the foregoing, and in the case of clauses (2) through (8)(B) and (8)(D) through
(13) below, so long as no Default or Event of Default is continuing or would
arise therefrom, the foregoing provisions shall not prohibit the following
actions (each of clauses (1) through (5) and (7) through (10) being referred to
as a “Permitted
Payment”):
(1) the
payment of any dividend within 60 days after the date of declaration thereof, if
at such date of declaration such payment was permitted by the provisions
of
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paragraph
(a) of this Section 4.08 and such payment shall have been deemed to have been
paid on such date of declaration;
(2) the
purchase, repurchase, redemption, or other acquisition or retirement for value
of any shares of any class of Capital Stock of the Company or any direct or
indirect parent of the Company out of the Net Cash Proceeds of substantially
concurrent contributions to the common equity capital of the Company by any
direct or indirect parent of the Company; provided that the Net Cash
Proceeds from such contributions are excluded from clause (B) of the second
clause (3) of paragraph (a) of this Section 4.08;
(3) the
purchase, repurchase, redemption, defeasance, satisfaction and discharge,
retirement or other acquisition for value or payment of principal of any
Subordinated Indebtedness of the Company or any Restricted Subsidiary in an
amount not in excess of the Net Cash Proceeds of substantially concurrent
contributions to the common equity capital of the Company by any direct or
indirect parent of the Company; provided that the Net Cash
Proceeds from such contributions are excluded from clause (B) of the second
clause (3) of paragraph (a) of this Section 4.08;
(4) the
purchase, repurchase, redemption, defeasance, retirement, refinancing,
acquisition for value or payment of principal of any Subordinated Indebtedness
of the Company or any Restricted Subsidiary through an incurrence of Permitted
Refinancing Indebtedness;
(5) any
payment of dividends, other distributions or other amounts or the making of
loans or advances by the Company to any direct or indirect parent of the Company
for the purposes set forth in clauses (A) through (D) below:
(A) for any
direct or indirect parent company of the Company to pay accounting, legal and
other fees required to maintain its corporate existence and to provide for other
operating costs, in each case related to the Company;
(B) in an
amount not to exceed an aggregate $200,000 per fiscal year required by any
direct or indirect parent of the Company to pay to Coliseum and Twin Haven for
management, consulting or financial advisory services;
(C) to pay
franchise taxes and to pay federal, state, local and foreign income taxes to the
extent such income taxes are attributable to the income of the Company and its
Restricted Subsidiaries (and, to the extent of amounts actually received from
its Unrestricted Subsidiaries, in amounts required to pay such taxes to the
extent attributable to the income of such Unrestricted Subsidiaries);
and
(D) to pay
reasonable directors fees and to reimburse reasonable out-of-pocket expenses of
the Board of Directors of any direct or indirect parent of the
Company;
(6) any
distribution, loan or advance to any direct or indirect parent entity of the
Company for the purchase, repurchase, redemption or other acquisition for value
of Capital Stock of any direct or indirect parent of the Company, in each case,
owned by
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employees,
former employees, directors or former directors, consultants or foreign
consultants of the Company or any of its Subsidiaries (or permitted transferees
of such employees, former employees, directors or former directors, consultants
or foreign consultants) pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or other agreement or
arrangement, or consulting agreement; provided, however, that the aggregate
amount paid, loaned or advanced pursuant to this clause (6) will not, in the
aggregate, exceed $1.25 million per fiscal year; provided, further that the Company may
carry forward and make in the next succeeding two fiscal years, in addition to
the amounts permitted for such fiscal year pursuant to this clause (6), any
unused amounts from the previous two fiscal years so long as the amount in any
fiscal year does not exceed $2.5 million;
(7) the
declaration and payment of dividends and distributions to holders of any class
or series of Disqualified Stock of the Company or any of its Restricted
Subsidiaries issued or incurred in accordance with Section 4.07
hereof;
(8) following
the first Public Equity Offering of any direct or indirect parent of the Company
after the date of this Indenture, the payment of dividends on the Company’s
common stock solely for the purpose of funding the payment of dividends on such
company’s common stock in an amount not to exceed 6% per annum of the gross
proceeds of such Public Equity Offering received by any direct or indirect
parent of the Company and contributed to the common equity capital of the
Company;
(9) upon the
occurrence of a Change of Control and within 60 days after the completion of the
offer to repurchase Notes pursuant to Section 4.21 hereof (including the
repurchase of all Notes tendered), any purchase or redemption of Indebtedness of
the Company subordinated to the Notes that is required to be repurchased or
redeemed pursuant to the terms thereof as a result of such Change of Control, at
a purchase price not greater than 101 % of the outstanding principal amount
thereof (plus accrued and unpaid interest); and
(10) other
Restricted Payments not otherwise permitted pursuant to this Section 4.08 in an
aggregate amount not to exceed $7.0 million.
(c) The
amount of all Restricted Payments (other than cash) shall be the Fair Market
Value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued to or by the Company or such Subsidiary, as
the case may be, pursuant to the Restricted Payment. The Fair Market
Value of any assets or securities that are required to be valued by this Section
4.08 will be determined by the Board of Directors of the Company, whose
resolution with respect thereto will be delivered to the Trustee. In
determining whether any Restricted Payment is permitted by this Section 4.08,
the Company may allocate all or any portion of such Restricted Payment among the
categories described in clauses (1) through (7) of the immediately preceding
clause (b) of this Section 4.08 or among such categories and the types of
Restricted Payments described in clause (a) of this Section 4.08; provided that
at the time of such allocation, all such Restricted Payments, or allocated
portions thereof, would be permitted under the various provisions of this
Section 4.08.
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Section
4.09. Transactions with
Affiliates.
(a) The
Company shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including the sale, purchase, exchange or lease of assets,
property or services) with or for the benefit of any Affiliate of the Company
(other than the Company or a Restricted Subsidiary) (each, an “Affiliate
Transaction”) unless such Affiliate
Transaction is entered into in good faith and in writing and
(1) such
Affiliate Transaction or series of related Affiliate Transactions is on terms
that are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that would be available in a comparable transaction in
arm’s-length dealings with a party who is not an Affiliate of the
Company,
(2) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration having a Fair Market Value in excess of $3.0
million,
(a) the
Company delivers an Officers’ Certificate to the Trustee certifying that such
Affiliate Transaction or series of related Affiliate Transactions complies with
clause (1) above, and
(b) such
Affiliate Transaction or series of related Affiliate Transactions is in writing
and (I) has been approved by a majority of the Disinterested Directors of the
Board of Directors of the Company, or in the event there is only one
Disinterested Director, by such Disinterested Director, or (II) in the event
there is no Disinterested Director, is fair to the Company or such Restricted
Subsidiary from a financial point of view in the opinion of an investment
banking firm of national standing or other recognized independent expert with
experience appraising the terms and conditions of transactions or series of
related transaction similar to such Affiliate Transaction or series of related
Affiliate Transactions, or
(3) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration having a Fair Market Value in excess of $5.0
million, such Affiliate Transaction or series of related Affiliate Transactions
is in writing and the Company delivers to the Trustee a written opinion of an
investment banking firm of national standing or other recognized independent
expert with experience appraising the terms and conditions of the type of
transaction or series of related transactions for which an opinion is required
stating that the Affiliate Transaction or series of related Affiliate
Transactions is fair to the Company or such Restricted Subsidiary from a
financial point of view;
(b) However,
paragraph (a) above shall not apply to:
(1) employee
benefit arrangements with any officer or director of the Company and any direct
or indirect parent of the Company, including under any employment agreement,
stock option or stock incentive plans, and customary
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indemnification
arrangements with officers or directors of the Company and any direct or
indirect parent of the Company, in each case entered into in the ordinary course
of business;
(2) payment
of reasonable directors fees to directors of the Company and any direct or
indirect parent of the Company;
(3) any
Restricted Payments or Permitted Payments made in compliance with Section 4.08
hereof or any Permitted Investment;
(4) transactions
involving the Company or any of its Restricted Subsidiaries on the one hand, and
Twin Haven and Coliseum and/or any of their respective Affiliates, on the other
hand, in connection with management, financial advisory, financing or similar
services, which payments are approved by a majority of the Disinterested
Directors;
(5) any
transactions undertaken pursuant to any contracts in existence on the Issue Date
(as in effect on the Issue Date) and any renewals, replacements or modifications
of such contracts (pursuant to new transactions or otherwise) on terms no less
favorable to the Holders of the Notes than those in effect on the Issue
Date;
(6) payments
of any management, consulting or financial advisory fees to Twin Haven and
Coliseum and their respective Affiliates pursuant to the Advisory Services
Agreements in an amount not to exceed $200,000 in the aggregate per fiscal year,
and transactions pursuant to such Advisory Services Agreements;
(7) loans and
advances to employees made in the ordinary course of business of any direct or
indirect parent of the Company, the Company or such Restricted Subsidiary, as
the case may be; provided that such loans and
advances do not exceed $500,000 in the aggregate at any one time
outstanding;
(8) any tax
sharing agreement or arrangement and payments pursuant thereto among the Company
and its Subsidiaries and any other Person with which the Company and its
Subsidiaries is required or permitted to file a consolidated, combined or
unitary tax return or with which the Company or any of its Restricted
Subsidiaries is or could be part of a consolidated, combined or unitary tax
group for tax purposes in amounts not otherwise prohibited by this
Indenture;
(9) sales of
Capital Stock (other than Disqualified Stock) to Affiliates of the Company;
provided that the
consideration received in respect of such sales is at Fair Market Value, and
sales of Additional Notes in an aggregate principal amount not to exceed $5.0
million pursuant to a rights offering to Holders of the Initial
Notes;
(10) transactions
with customers, clients, suppliers or purchasers or sellers of goods and
services, in each case in the ordinary course of business consistent with past
practice and otherwise in compliance with the terms of this Indenture that are
on terms no less favorable than those that would have been obtained in a
comparable transaction with
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an
unrelated party or on terms that are approved by the Board of Directors of the
Company, including a majority of the Disinterested Directors, if any;
and
(11) transactions
pursuant to the Stockholder Agreement.
Section
4.10. Liens.
(a) The
Company shall not, and shall not cause or permit any Restricted Subsidiary to,
directly or indirectly, create, incur or affirm any Lien of any kind on or with
respect to the Collateral except Permitted Liens.
(b) Subject
to paragraph (a) above, the Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, create, incur or affirm any
Lien of any kind, other than Permitted Liens, upon any property or assets
(including any intercompany notes) of the Company or any Restricted Subsidiary
owned on the date of this Indenture or acquired after the date of this
Indenture, or assign or convey any right to receive any income or profits
therefrom, unless the Notes (or a Guarantee in the case of Liens of a Guarantor)
are directly secured equally and ratably with (or, in the case of Subordinated
Indebtedness, prior or senior thereto, with the same relative priority as the
Notes shall have with respect to such Subordinated Indebtedness) the obligation
or liability secured by such Lien.
(c) Notwithstanding
the foregoing, any Lien securing the Notes or a Guarantee granted pursuant to
paragraph (b) above (other than pursuant to the Security Documents) shall be
automatically and unconditionally released and discharged upon: (i) any sale,
exchange or transfer to any Person not an Affiliate of the Company of the
property or assets subject to such Lien, (ii) any sale, exchange or transfer to
any Person not an Affiliate of the Company of all of the Capital Stock held by
the Company or any Restricted Subsidiary in, or all or substantially all the
assets of, any Restricted Subsidiary creating such Lien, or (iii) with respect
to any Lien securing a Guarantee, the release of such Guarantee in accordance
with this Indenture.
Section
4.11. Asset
Sales.
(a) The
Company shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (1) at
least 75% of the consideration from such Asset Sale is received in cash or Cash
Equivalents and (2) the Company or such Restricted Subsidiary, as the case may
be, receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of assets or Capital Stock subject to such Asset
Sale.
For
purposes of paragraph (a)(1) above, the following shall be deemed to be cash:
(A) the amount of any Indebtedness (other than any Subordinated Indebtedness) of
the Company or any Restricted Subsidiary that is actually assumed by the
transferee in such Asset Sale and from which the Company and the Restricted
Subsidiaries are fully and unconditionally released (excluding any liabilities
that are incurred in connection with or in anticipation of such Asset Sale and
contingent liabilities), (B) the amount of any notes, securities or other
similar obligations received by the Company or any Restricted Subsidiary from
such transferee that are immediately converted, sold or exchanged (or are
converted, sold or exchanged within 90 days
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of the
related Asset Sale) by the Company or the Restricted Subsidiaries into cash in
an amount equal to the net cash proceeds realized upon such conversion, sale or
exchange, and (C) the amount of any Designated Non-cash Consideration received
by the Company or any of its Restricted Subsidiaries in the Asset
Sale.
(b) Within
365 days after the receipt of any Net Cash Proceeds from an Asset Sale, all or a
portion of such proceeds may be applied by the Company or a Restricted
Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or
is required by the terms of any Indebtedness under the Credit
Agreement):
(1) to prepay
permanently or repay permanently any First Priority Lien Obligations then
outstanding as required by the terms thereof (and in the case of any such
Indebtedness under a revolving credit facility, effect a permanent reduction in
the availability under such revolving credit facility), or
(2) if the
Company or such Restricted Subsidiary determines not to apply such Net Cash
Proceeds to the permanent repayment or permanent prepayment of any First
Priority Lien Obligations, or if no such First Priority Lien Obligations are
then outstanding, to acquire (A) all or substantially all of the assets of, or
any Capital Stock of, another 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, or (B) properties and other assets that
(as determined by the Board of Directors of the Company) replace the properties
and assets that were the subject of the Asset Sale or in properties and assets
that will be used in the businesses of the Company or its Restricted
Subsidiaries (including pursuant to capital expenditures) existing on the date
of this Indenture or in a Permitted Business; provided, however, that, with respect
to an Asset Sale involving Collateral (a “Collateral Asset
Sale”), the Company and the Guarantors must execute and deliver to the
Trustee such collateral documents or other instruments as are reasonably
necessary to cause such replacement properties and assets to become subject to a
Second Priority Lien to the extent required by the Security Documents in favor
of the Trustee on behalf of the Holders of Notes, and otherwise shall comply
with the provisions in this Indenture including Section 4.15 hereof, and the
Security Documents governing After-Acquired Property.
In the
case of clause (2) above, the Company or such Restricted Subsidiary shall be
deemed to have complied with its obligations under the preceding paragraphs of
this Section 4.11 if it enters into a binding commitment to acquire such
properties, assets or Capital Stock prior to 365 days after the receipt of the
applicable Net Cash Proceeds; provided that such binding
commitment will be subject only to customary conditions and such acquisition is
completed as to any Collateral Asset Sale (and the obligations specified in the
proviso to clause (b)(2) are satisfied) within 180 days following the expiration
of the aforementioned 365 day period. If the acquisition contemplated by such
binding commitment is not consummated on or before such 180th day,
and the Company has not applied the applicable Net Cash Proceeds for another
purpose permitted by the applicable preceding paragraph of this Section 4.11 on
or before such 180th day, such commitment shall be deemed to not have
been a permitted application of Net Cash Proceeds.
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The
amount of such Net Cash Proceeds from any Collateral Asset Sale that are not
used or invested in accordance with the preceding clauses (1) and (2) within 365
days of the Asset Sale constitutes “Collateral Excess
Proceeds.” The amount of such Net Cash Proceeds from any Asset Sale not
involving Collateral that are not used or invested in accordance with the
preceding clauses (1) and (2) within 365 days of the Asset Sale constitutes
“Excess
Proceeds.”
(c) (1) When
the aggregate amount of Collateral Excess Proceeds exceeds $5.0 million or more,
the Company will make an offer (a “Collateral Asset Sale
Offer”) to all Holders of Notes to purchase in cash the maximum principal
amount of Notes that may be purchased out of the Collateral Excess Proceeds. The
offer price (the “Collateral
Asset Sale Offer Price”) in any Collateral Asset Sale Offer
will be equal to 100% of principal amount plus accrued and unpaid interest, if
any, to the date of purchase (the “Collateral Asset
Sale Offer Date”), and will be payable in cash. If any Collateral Excess
Proceeds remain after consummation of a Collateral Asset Sale Offer, the Company
may use such Collateral Excess Proceeds for any purposes not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes
tendered into such Collateral Asset Sale Offer exceeds the amount of Collateral
Excess Proceeds, the Notes to be purchased shall be purchased on a pro rata basis. Upon completion
of each Collateral Asset Sale Offer, the amount of Collateral Excess Proceeds
shall be reset at zero.
(2) When the
aggregate amount of Excess Proceeds exceeds $5.0 million or more, the Company
will make an offer (an “Asset Sale Offer”) to
all Holders of Notes and all holders of Pari Passu Indebtedness containing
provisions similar to those set forth in this Section 4.11 with respect to
offers to purchase with the proceeds of sales of assets to purchase in cash the
maximum principal amount of Notes and such other Pari Passu Indebtedness that
may be purchased out of the Excess Proceeds. The offer price (the “Asset Sale Offer
Price”) in any Asset Sale Offer will be equal to 100% of principal amount
plus accrued and unpaid interest, if any, to the date of purchase (the “Asset Sale Offer
Date”), and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purposes not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and such other Pari Passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such
other Pari Passu Indebtedness to be purchased shall be purchased on a pro rata basis based on
the aggregate principal amount of Notes and such other Pari Passu Indebtedness
tendered. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(d) Pending
application of Net Cash Proceeds pursuant to this Section 4.11, such Net Cash
Proceeds may be invested in Cash Equivalents or applied to temporarily reduce
Indebtedness under
a revolving credit facility, if any, under the Credit
Agreement or any Indebtedness of any Restricted Subsidiary that is not a
Guarantor.
(e) If the
Company becomes obligated to make a Collateral Asset Sale Offer or an Asset Sale
Offer pursuant to clause (c) above, the Notes and (in the case of an Asset Sale
Offer) the Pari Passu Indebtedness shall be purchased by the Company, at the
option of the holders thereof, in whole or in part in amounts of $5,000 or whole
multiples of $1,000 in excess
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thereof,
on a date that is not earlier than 30 days and not later than 60 days from the
date the notice of the Collateral Asset Sale Offer or the Asset Sale Offer, as
the case may be, is given to such holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act.
(f) To the
extent that the provisions of any securities laws or regulations conflict with
the Asset Sale provisions of this Section 4.11, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.11 by virtue of such
conflict.
(g) The
aggregate Fair Market Value of the Designated Non-cash Consideration held by the
Company or any Restricted Subsidiary at any given time, taken together with the
Fair Market Value at the time of receipt of all other Designated Non-cash
Consideration received and still held by the Company or any Restricted
Subsidiary at such time, may not exceed $5.0 million in the aggregate at the
time of the receipt of the Designated Non-cash Consideration (with the Fair
Market Value being measured at the time received and without giving effect to
subsequent changes in value).
(h) Subject
to paragraph (f) above, within 30 days after the date on which the amount of
Collateral Excess Proceeds or Excess Proceeds, as the case may be, exceeds $5.0
million, the Company shall send or cause to be sent by first-class mail, postage
prepaid, to the Trustee and to each Holder, at his address appearing in the
Security Register, a notice stating or including:
(1) that the
Holder has the right to require the Company to repurchase, subject to proration,
such Holder’s Notes at the Collateral Asset Sale Offer Price or Asset Sale Offer
Price, as the case may be;
(2) the
Collateral Asset Sale Offer Date or the Asset Sale Offer Date, as the case may
be;
(3) the
instructions a Holder must follow in order to have his or her Notes purchased in
accordance with paragraph (c) above;
(4) the
Collateral Asset Sale Offer Price or Asset Sale Offer Price, as the case may
be;
(5) the names
and addresses of the Paying Agent and the offices or agencies referred to in
Section 4.02 hereof;
(6) that
Notes must be surrendered prior to the Collateral Asset Sale Offer Date or Asset
Sale Offer Date, as the case may be, to the Paying Agent at the office of the
Paying Agent or to an office or agency referred to in Section 4.02 to collect
payment;
(7) that any
Notes not tendered will continue to accrue interest and that unless the Company
defaults in the payment of the Collateral Asset Sale Offer Price or Asset Sale
Offer Price, as the case may be, any Note accepted for payment pursuant to the
Collateral Asset Sale Offer or Asset Sale Offer, as the case may be, shall cease
to accrue
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interest
on and after the Collateral Asset Sale Offer Date or Asset Sale Offer Date, as
the case may be;
(8) the
procedures for withdrawing a tender; and
(9) that the
Collateral Asset Sale Offer Price or Asset Sale Offer Price, as the case may be,
for any Note which has been properly tendered and not withdrawn and which has
been accepted for payment pursuant to the Collateral Asset Sale Offer or Asset
Sale Offer, as the case may be, will be paid promptly following the Collateral
Asset Sale Offer Date or Asset Sale Offer Date, as the case may be.
(i) Holders
electing to have Notes purchased hereunder will be required to surrender such
Notes at the address specified in the notice prior to the Collateral Asset Sale
Offer Date or Asset Sale Offer Date, as the case may be. Holders will be
entitled to withdraw their election to have their Notes purchased pursuant to
this Section 4.11 if the Company receives, not later than one Business Day prior
to the Collateral Asset Sale Offer Date or Asset Sale Offer Date, as the case
may be, a telegram, telex, facsimile transmission or letter setting forth (1)
the name of the Holder, (2) the certificate number of the Note in respect of
which such notice of withdrawal is being submitted, (3) the principal amount of
the Note (which shall be $5,000 or whole multiples of $1,000 in excess thereof)
delivered for purchase by the Holder as to which his election is to be
withdrawn, (4) a statement that such Holder is withdrawing his election to have
such principal amount of such Note purchased, and (5) the principal amount, if
any, of such Note (which shall be $5,000 or whole multiples of $1,000 in excess
thereof) that remains subject to the original notice of the Collateral Asset
Sale Offer or Asset Sale Offer, as the case may be, and that has been or will be
delivered for purchase by the Company.
(j) The
Company shall (i) not later than the Collateral Asset Sale Offer Date or Asset
Sale Offer Date, as the case may be, accept for payment Notes or portions
thereof tendered pursuant to the Collateral Asset Sale Offer or Asset Sale
Offer, as the case may be, (ii) not later than 10:00 a.m. (New York time) on the
Collateral Asset Sale Offer Date or Asset Sale Offer Date, as the case may be,
deposit with the Trustee or with a Paying Agent an amount of money in same day
funds sufficient to pay the aggregate Collateral Asset Sale Offer Price or Asset
Sale Offer Price, as the case may be, of all the Notes or portions thereof which
are to be purchased on that date and (iii) not later than 10:00 a.m. (New York
time) on the Collateral Asset Sale Offer Date or Asset Sale Offer Date, as the
case may be, deliver to the Paying Agent an Officers’ Certificate stating the
Notes or portions thereof accepted for payment by the Company. The Paying Agent
shall promptly mail or deliver to Holders of Notes so accepted payment in an
amount equal to the Collateral Asset Sale Offer Price or Asset Sale Offer Price,
as the case may be, of the Notes purchased from each such Holder, and the
Company shall execute and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Note equal in principal amount to any unpurchased
portion of the Note surrendered. Any Notes not so accepted shall be promptly
mailed or delivered by the Paying Agent at the Company’s expense to the Holder
thereof. For purposes of this Section 4.11, the Company shall choose a Paying
Agent which shall not be the Company.
Subject
to applicable escheat laws, the Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed, together with interest, if any, thereon
(subject
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to
Section 7.01(f)), held by them for the payment of the Collateral Asset Sale
Offer Price or Asset Sale Offer Price, as the case may be; provided, however, that (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee in respect of an Collateral Asset Sale Offer or Asset Sale Offer, as the
case may be, exceeds the aggregate Collateral Asset Sale Offer Price or Asset
Sale Offer Price, as the case may be, of the Notes or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Collateral Asset Sale Offer Date or Asset Sale Offer Date, as
the case may be, the Trustee shall return any such excess to the Company
together with interest or dividends, if any, thereon (subject to Section
7.01(f)).
(k) Notes to
be purchased shall, on the Collateral Asset Sale Offer Date or Asset Sale Offer
Date, as the case may be, become due and payable at the Collateral Asset Sale
Offer Price or Asset Sale Offer Price, as the case may be, and from and after
such date (unless the Company shall default in the payment of the Collateral
Asset Sale Offer Price or Asset Sale Offer Price, as the case may be) such Notes
shall cease to bear interest. Such Collateral Asset Sale Offer Price or Asset
Sale Offer Price, as the case may be, shall be paid to such Holder promptly
following the later of the Collateral Asset Sale Offer Date or Asset Sale Offer
Date, as the case may be, and the time of delivery of such Note to the relevant
Paying Agent at the office of such Paying Agent by the Holder thereof in the
manner required. Upon surrender of any such Note for purchase in accordance with
the foregoing provisions, such Note shall be paid by the Company at the
Collateral Asset Sale Offer Price or Asset Sale Offer Price, as the case may be;
provided, however, that installments of
interest whose Stated Maturity is on or prior to the Collateral Asset Sale Offer
Date and the Asset Sale Offer Date, as the case may be, shall be payable to the
Person in whose name the Notes are registered as such on the relevant Regular
Record Dates according to the terms and the provisions of Section 2.04; provided further that Notes to be
purchased are subject to proration in the event the Collateral Excess Proceeds
or Excess Proceeds, as the case may be, are less than the aggregate Collateral
Asset Sale Offer Price or Asset Sale Offer Price, as the case may be, of all
Notes and (in the case of an Asset Sale Offer) the Pari Passu Indebtedness
tendered for purchase, with such adjustments as may be appropriate by the
Trustee so that only Notes in denominations of $5,000 or whole multiples of
$1000 in excess thereof, shall be purchased. If any Note tendered for purchase
shall not be so paid upon surrender thereof by deposit of funds with the Trustee
or a Paying Agent in accordance with paragraph (i) above, the principal thereof
(and premium, if any, thereon) shall, until paid, bear interest from the
Collateral Asset Sale Offer Date or Asset Sale Offer Date, as the case may be,
at the rate borne by such Note. Any Note that is to be purchased only in part
shall be surrendered to a Paying Agent at the office of such Paying Agent (with,
if the Company, the Registrar or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the Company and the
Registrar or the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge, one or more new Notes of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Note so surrendered
that is not purchased. The Company shall publicly announce the results of the
Collateral Asset Sale Offer or Asset Sale Offer, as the case may be, on or as
soon as practicable after the Collateral Asset Sale Offer Date or Asset Sale
Offer Date, as the case may be.
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Section
4.12. Issuances of Guarantees and
Joinder to Security Agreement by
Restricted Subsidiaries.
The
Company shall provide to the Trustee, within 10 Business Days of the date that
(i) any Person (other than a Foreign Subsidiary) becomes a Restricted
Subsidiary, (ii) any Unrestricted Subsidiary (other than a Foreign Subsidiary)
is redesignated as a Restricted Subsidiary, (iii) any Restricted Subsidiary
(other than a Foreign Subsidiary) of the Company (which is not a Guarantor)
becomes a guarantor or obligor in respect of any Indebtedness of the Company or
any of the Restricted Subsidiaries, or (iv) any Restricted Subsidiary incurs any
Indebtedness in excess of $5,000, conducts any operations or business, or owns
or acquires any assets or properties on or after the Issue Date having a Fair
Market Value in excess of $5,000, in each case, (A) a supplemental indenture to
this Indenture substantially in the form attached hereto as Exhibit E, executed
by such Restricted Subsidiary, providing for a full and unconditional Guarantee
on a senior secured basis by such Restricted Subsidiary of the Company’s
obligations under the Notes and this Indenture to the same extent as that set
forth in Article Eleven hereof and (B) a supplement to the Security Agreement,
substantially in the form attached thereto, executed by such Restricted
Subsidiary, whereby such Restricted Subsidiary shall become a Grantor (as
defined in the Security Agreement) and providing that such Restricted Subsidiary
under and pursuant to the Security Agreement take all other action required of a
Grantor under the Security Agreement, including any actions so that the Lien of
the Security Documents on the property or assets of such Restricted Subsidiary
are perfected and have priority over other Liens to the extent required by the
Security Documents.
Section
4.13. Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
(a) The
Company shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause 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 distribution on its Capital Stock,
(2) pay any
Indebtedness owed to the Company or any other Restricted
Subsidiary,
(3) make any
Investment in the Company or any other Restricted Subsidiary or
(4) transfer
any of its properties or assets to the Company or any other Restricted
Subsidiary.
(b) However,
paragraph (a) above shall not prohibit any encumbrance or restriction created,
existing or becoming effective under or by reason of:
(1) any
agreement (including with respect to the Credit Agreement, this Indenture, the
Notes and the Guarantees) in effect on the date of this Indenture;
(2) any
agreements or instruments with respect to a Restricted Subsidiary that is not a
Restricted Subsidiary of the Company on the date of this Indenture, in
existence
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at the
time such Person becomes a Restricted Subsidiary of the Company and not incurred
in connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary; provided
that such encumbrances and restrictions are not applicable to the Company or any
Restricted Subsidiary or the properties or assets of the Company or any
Restricted Subsidiary other than such Subsidiary which is becoming a Restricted
Subsidiary;
(3) any
agreement governing any Indebtedness permitted by clause (7) of the definition
of Permitted Debt as to the assets financed with the proceeds of such
Indebtedness;
(4) any
agreements or instruments governing any Acquired Debt or other agreement of any
entity related to assets acquired by or merged into or consolidated with the
Company or any Restricted Subsidiaries, so long as such encumbrance or
restriction (A) was not entered into in contemplation of the acquisition, merger
or consolidation transaction, and (B) is not applicable to any Person, or the
properties or assets of any person, other than the Person, or the property or
assets of the Person, so acquired, so long as the agreement containing such
restriction does not violate any other provision of this Indenture;
(5) applicable
law or any requirement of any regulatory body;
(6) security
documents evidencing any Liens securing Indebtedness otherwise permitted to be
incurred under the provisions of Section 4.10 hereof that limit the right of the
debtor to dispose of the assets subject to such Liens;
(7) customary
non-assignment provisions in leases, licenses or contracts;
(8) customary
agreements entered into for the sale or disposition of Capital Stock or assets
of a Restricted Subsidiary or an agreement entered into for the sale of specific
assets that are permitted to be incurred under Section 4.11 hereof and that
limit the transfer of such assets or Capital Stock pending their sale or other
disposition;
(9) other
Indebtedness of the Company or any Restricted Subsidiary that is pari passu in
right of payment with the Notes or the Guarantees, incurred under an indenture
pursuant to Section 4.07 hereof; provided that the
encumbrances and restrictions are no more restrictive in any material respect,
taken as a whole, than those contained in this Indenture;
(10) Permitted
Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are no more
restrictive in any material respect, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced;
(11) restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business; and
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(12) any
agreement, amendment, modification, restatement, renewal, supplement, refunding,
replacement or refinancing that extends, renews, refinances or replaces the
agreements containing the encumbrances or restrictions in the foregoing clauses
(1) through (11), or in this clause (12); provided that the terms and
conditions of any such encumbrances or restrictions are no more restrictive in
any material respect taken as a whole than those under or pursuant to the
agreement so extended, renewed, refinanced or replaced.
Section
4.14. Sale and Leaseback
Transactions.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
enter into any sale and leaseback transaction; provided that the Company or
one of its Restricted Subsidiaries may enter into a sale and leaseback
transaction if:
(1) the
Company or such Restricted Subsidiary could have incurred Indebtedness in an
amount equal to the Attributable Indebtedness relating to such sale and
leaseback transaction pursuant to the Consolidated Fixed Charge Coverage Ratio
test set forth in paragraph (a) of Section 4.07 hereof or pursuant to clause (7)
of the definition of Permitted Debt;
(2) the gross
cash proceeds of such sale and leaseback transactions are at least equal to the
Fair Market Value of the property that is the subject of such sale and leaseback
transaction; and
(3) the
transfer of assets in such sale and leaseback transaction is permitted by, and
the Company applies the proceeds of such transaction in compliance with, Section
4.11 hereof.
Section
4.15. After-Acquired
Property.
The
Company and the Guarantors agree that all After-Acquired Property shall be
Collateral under this Indenture and the relevant Security Documents and shall
take all reasonably necessary action so that such After-Acquired Property is
subject to the Lien of the Security Documents and such Lien is perfected and has
priority over other Liens to the extent required by the Security
Documents.
Section
4.16. Events of
Loss.
(a) In the
event of an Event of Loss with respect to any Collateral, the Company or the
affected Guarantor, as the case may be, shall apply the Net Loss Proceeds from
such Event of Loss, within 365 days after receipt, at its option to (1) the
prepayment or repayment of any First Priority Lien Obligations, (2) the
rebuilding, repair, replacement or construction of improvements to the affected
property or (3) make capital expenditures with respect to Collateral or to
acquire properties or assets that will constitute Collateral and be used or
useful in the business of the Company or any of its Restricted Subsidiaries.
Pending the final application of any Net Loss Proceeds, the Company or any
Guarantor shall deposit such Net Loss Proceeds in the Collateral
Account.
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(b) Any Net
Loss Proceeds from an Event of Loss that are not applied or invested as provided
in paragraph (a) above shall be deemed to constitute “Excess
Loss Proceeds.” When the aggregate amount of Excess Loss
Proceeds exceeds $5.0 million, the Company shall make an offer to all holders of
Notes (a “Loss
Proceeds Offer”) to purchase in cash the maximum principal amount of
Notes that may be purchased out of such Excess Loss Proceeds, at an offer price
(the “Loss Proceeds
Offer Price”) in cash in an amount equal to 100% of their principal
amount plus accrued and unpaid interest to the date of purchase (the “Loss Proceeds Offer
Date”). If the aggregate principal amount of Notes surrendered by Holders
of Notes exceeds the Excess Loss Proceeds to be used to purchase Notes, the
Trustee shall select the Notes to be purchased on a pro rata basis.
(c) The
Company shall comply with the applicable tender offer rules, including Rule
14e-1 under the Exchange Act, and any other applicable securities laws or
regulations in connection with a Loss Proceeds Offer. To the extent that the
provisions of any applicable securities laws or regulations conflict with the
provisions of this Indenture, the Company and the Guarantors shall comply with
such securities laws and regulations and shall not be deemed to have breached
their obligations described in this Indenture by virtue thereof.
(d) Subject
to paragraph (c) above, within 30 days after the date on which the amount of
Excess Loss Proceeds exceeds $5.0 million, the Company shall send or cause to be
sent by first-class mail, postage prepaid, to the Trustee and to each Holder, at
his address appearing in the Security Register, a notice stating or
including:
(1) that the
Holder has the right to require the Company to repurchase, subject to proration,
such Holder’s Notes at the Loss Proceeds Offer Price;
(2) the Loss
Proceeds Offer Date;
(3) the
instructions a Holder must follow in order to have his or her Notes purchased in
accordance with paragraph (b) above;
(4) the Loss
Proceeds Offer Price;
(5) the names
and addresses of the Paying Agent and the offices or agencies referred to in
Section 4.02 hereof;
(6) that
Notes must be surrendered prior to the Loss Proceeds Offer Date to the Paying
Agent at the office of the Paying Agent or to an office or agency referred to in
Section 4.02 to collect payment;
(7) that any
Notes not tendered will continue to accrue interest and that unless the Company
defaults in the payment of the Loss Proceeds Offer Price, any Note accepted for
payment pursuant to the Loss Proceeds Offer, shall cease to accrue interest on
and after the Loss Proceeds Offer Date;
(8) the
procedures for withdrawing a tender; and
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(9) that the
Loss Proceeds Offer Price for any Note which has been properly tendered and not
withdrawn and which has been accepted for payment pursuant to the Loss Proceeds
Offer will be paid promptly following the Loss Proceeds Offer Date.
(e) Holders
electing to have Notes purchased hereunder will be required to surrender such
Notes at the address specified in the notice prior to the Loss Proceeds Offer
Date. Holders will be entitled to withdraw their election to have their Notes
purchased pursuant to this Section 4.16 if the Company receives, not later than
one Business Day prior to the Loss Proceeds Offer Date, a telegram, telex,
facsimile transmission or letter setting forth (1) the name of the Holder, (2)
the certificate number of the Note in respect of which such notice of withdrawal
is being submitted, (3) the principal amount of the Note (which shall be $5,000
or whole multiples of $1,000 in excess thereof) delivered for purchase by the
Holder as to which his election is to be withdrawn, (4) a statement that such
Holder is withdrawing his election to have such principal amount of such Note
purchased, and (5) the principal amount, if any, of such Note (which shall be
$5,000 or whole multiples of $1,000 in excess thereof) that remains subject to
the original notice of the Loss Proceeds Offer and that has been or will be
delivered for purchase by the Company.
(f) The
Company shall (i) not later than the Loss Proceeds Offer Date accept for payment
Notes or portions thereof tendered pursuant to the Loss Proceeds Offer, (ii) not
later than 10:00 a.m. (New York time) on the Loss Proceeds Offer Date deposit
with the Trustee or with a Paying Agent an amount of money in same day funds
sufficient to pay the aggregate Loss Proceeds Offer Price of all the Notes or
portions thereof which are to be purchased on that date and (iii) not later than
10:00 a.m. (New York time) on the Loss Proceeds Offer Date deliver to the Paying
Agent an Officers’ Certificate stating the Notes or portions thereof accepted
for payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Notes so accepted payment in an amount equal to the Loss Proceeds
Offer Price of the Notes purchased from each such Holder, and the Company shall
execute and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Note equal in principal amount to any unpurchased portion of the
Note surrendered. Any Notes not so accepted shall be promptly mailed or
delivered by the Paying Agent at the Company’s expense to the Holder thereof.
For purposes of this Section 4.16, the Company shall choose a Paying Agent which
shall not be the Company.
Subject
to applicable escheat laws, the Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed, together with interest or dividends, if
any, thereon (subject to Section 7.01(f)), held by them for the payment of the
Loss Proceeds Offer Price; provided, however, that (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee in respect of a Loss Proceeds Offer exceeds the aggregate Loss Proceeds
Offer Price of the Notes or portions thereof to be purchased, then the Trustee
shall hold such excess for the Company and (y) unless otherwise directed by the
Company in writing, promptly after two Business Days following the Loss Proceeds
Offer Date the Trustee shall return any such excess to the Company together with
interest or dividends, if any, thereon (subject to Section 7.01(f)
hereof).
(g) Notes to
be purchased shall, on the Loss Proceeds Offer Date, become due and payable at
the Loss Proceeds Offer Price and from and after such date (unless the
Company
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shall
default in the payment of the Loss Proceeds Offer Price) such Notes shall cease
to bear interest. Such Loss Proceeds Offer Price shall be paid to such Holder
promptly following the later of the Loss Proceeds Offer Date and the time of
delivery of such Note to the relevant Paying Agent at the office of such Paying
Agent by the Holder thereof in the manner required. Upon surrender of any such
Note for purchase in accordance with the foregoing provisions, such Note shall
be paid by the Company at the Loss Proceeds Offer Price; provided however that installments of
interest whose Stated Maturity is on or prior to the Loss Proceeds Offer Date
shall be payable to the Person in whose name the Notes are registered as such on
the relevant Regular Record Dates according to the terms and the provisions of
Section 2.04; provided
further that Notes to be purchased are subject to proration in the event
the Excess Loss Proceeds are less than the aggregate Loss Proceeds Offer Price
of all Notes tendered for purchase, with such adjustments as may be appropriate
by the Trustee so that only Notes in denominations of $5,000 or whole multiples
of $1000 in excess thereof, shall be purchased. If any Note tendered for
purchase shall not be so paid upon surrender thereof by deposit of funds with
the Trustee or a Paying Agent in accordance with paragraph (f) above, the
principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Loss Proceeds Offer Date at the rate borne by such Note. Any
Note that is to be purchased only in part shall be surrendered to a Paying Agent
at the office of such Paying Agent (with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Registrar or the Trustee duly executed
by, the Holder thereof or such Holder’s attorney duly authorized in writing),
and the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Note, without service charge, one or more new Notes of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered that is not purchased. The Company shall publicly announce
the results of the Loss Proceeds Offer on or as soon as practicable after the
Loss Proceeds Offer Date.
Section
4.17. Impairment of
Collateral.
Neither
the Company nor any of its Restricted Subsidiaries may take or omit to take any
action which action or omission has the effect, or could reasonably be expected
to have the result, of materially adversely affecting or impairing the Second
Priority Lien in favor of the Trustee for the benefit of the Holders of the
Notes in the Collateral, other than as expressly contemplated by this Indenture
or the Security Documents.
Section
4.18. Limitation on
Parent.
Parent
shall (v) not engage in any business activity other than acting as a direct
holding company of the Company and such activities that are ancillary to or
related to such role, (w) not have any Investments other than the Capital Stock
of the Company, (x) not have any Indebtedness other than Guarantees of Permitted
Debt of the Company, (y) cause the Company to be a direct Wholly Owned
Restricted Subsidiary of Parent and (z) guarantee the Notes and provide a pledge
of the Capital Stock of the Company.
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Section
4.19. Unrestricted
Subsidiaries.
(a) The Board
of Directors of the Company may designate any Restricted Subsidiary (other than
any Restricted Subsidiary holding any of the Collateral) as an “Unrestricted
Subsidiary” under this Indenture (a “Designation”) only
if:
(1) no
Default or Event of Default shall have occurred and be continuing at the time of
or after giving effect to such Designation;
(2) (x)
the Company would be permitted to make an Investment (other than a Permitted
Investment) at the time of Designation (assuming the effectiveness of such
Designation) pursuant to paragraph (a) of Section 4.08 hereof in an amount (the
“Designation
Amount”) equal to the greater of (1) the net book value of the Company’s
interest in such Subsidiary calculated in accordance with GAAP or (2) the Fair
Market Value of the Company’s interest in such Subsidiary as determined in good
faith by the Company’s Board of Directors, or (y) the Designation Amount is less
than $1,000;
(3) the
Company would be permitted under this Indenture to incur $1.00 of additional
Indebtedness (other than Permitted Debt) pursuant to Section 4.07 hereof at the
time of such Designation (assuming the effectiveness of such
Designation);
(4) such
Unrestricted Subsidiary does not own any Capital Stock in any Restricted
Subsidiary of the Company which is not simultaneously being designated an
Unrestricted Subsidiary;
(5) such
Unrestricted Subsidiary is not liable, directly or indirectly, with respect to
any Indebtedness other than Unrestricted Subsidiary Indebtedness, provided that an Unrestricted
Subsidiary may provide a Guarantee for the Notes; and
(6) except as
would be permitted under Section 4.09 hereof, such Unrestricted Subsidiary is
not a party to any agreement, contract, arrangement or understanding at such
time with the Company or any Restricted Subsidiary 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 or, in the event such
condition is not satisfied, the value of such agreement, contract, arrangement
or understanding to such Unrestricted Subsidiary shall be deemed a Restricted
Payment.
(b) In the
event of any such Designation, the Company shall be deemed to have made an
Investment constituting a Restricted Payment pursuant to Section 4.08 hereof for
all purposes of this Indenture in the Designation Amount.
(c) The
Company shall not and shall not cause or permit any Restricted Subsidiary to at
any time
(1) provide
credit support for, guarantee or subject any of its property or assets (other
than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of,
any Indebtedness of any Unrestricted Subsidiary (including any undertaking,
agreement
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or
instrument evidencing such Indebtedness) (other than Permitted Investments in
Unrestricted Subsidiaries) or
(2) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary.
(d) For
purposes of the foregoing, the Designation of a Restricted Subsidiary of the
Company as an Unrestricted Subsidiary shall be deemed to be the Designation of
all of the Restricted Subsidiaries of such Subsidiary as Unrestricted
Subsidiaries. Unless so designated as an Unrestricted Subsidiary, any Person
that becomes a Subsidiary of the Company will be classified as a Restricted
Subsidiary.
(e) The
Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary
(a “Revocation”)
if:
(1) no
Default or Event of Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation;
(2) all Liens
and Indebtedness of such Unrestricted Subsidiary outstanding immediately
following such Revocation would, if incurred at such time, have been permitted
to be incurred for all purposes of this Indenture; and
(3) unless
such redesignated Subsidiary shall not have any Indebtedness outstanding (other
than Indebtedness that would be Permitted Debt), immediately after giving effect
to such proposed Revocation, and after giving pro forma effect to the incurrence
of any such Indebtedness of such redesignated Subsidiary as if such Indebtedness
was incurred on the date of the Revocation, the Company could incur $1.00 of
additional Indebtedness (other than Permitted Debt) pursuant to paragraph (a) of
Section 4.07 hereof.
(f) All
Designations and Revocations must be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee certifying compliance
with the foregoing provisions of this Section 4.19.
Section
4.20. Payments for
Consent.
Neither
Parent nor the Company nor any of its Restricted Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to 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 or is
paid to all Holders of 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.
Section
4.21. Offer to Repurchase upon a
Change of Control.
(a) If a
Change of Control occurs, each Holder of Notes shall have the right to require
that the Company purchase all or any part (in amounts of $5,000 or whole
multiples of
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$1,000 in
excess thereof) of such Holder’s Notes pursuant to the offer described below
(the “Change of
Control Offer”). In the Change of Control Offer, the Company shall offer
to purchase in cash all of the Notes, at a purchase price (the “Change of Control Purchase
Price”) in cash in an amount equal to 101 % of the principal amount of
such Notes, plus accrued and unpaid interest, if any, to the date of purchase
(the “Change of
Control Purchase Date”) (subject to the rights of holders of record on
relevant Regular Record Dates to receive interest due on an Interest Payment
Date).
(b) Within 30
days of any Change of Control or, at the Company’s option, prior to such Change
of Control but after it is publicly announced, the Company must notify the
Trustee and give written notice of the Change of Control (the “Change of Control Purchase
Notice”) to each Holder of Notes, by first-class mail, postage prepaid,
at his address appearing in the security register. The Change of Control
Purchase Notice must state, among other things:
(1) that a
Change of Control has occurred or will occur and the date of such
event;
(2) the
circumstances and relevant facts regarding such Change of Control;
(3) the
Change of Control Purchase Price and the Change of Control Purchase Date, which
shall be fixed by the Company on a Business Day no earlier than 30 days nor
later than 60 days from the date the notice is mailed, or such later date as is
necessary to comply with requirements under the Exchange Act; provided that the Change of
Control Purchase Date may not occur prior to the Change of Control;
(4) that any
Note not tendered will continue to accrue interest;
(5) that,
unless the Company defaults in the payment of the Change of Control Purchase
Price, any Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Purchase Date;
and
(6) other
procedures that a Holder of Notes must follow to accept a Change of Control
Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon
receipt by the Company of the proper tender of Notes, the Holder of the Note in
respect of which such proper tender was made shall (unless the tender of such
Note is properly withdrawn) thereafter be entitled to receive solely the Change
of Control Purchase Price with respect to such Notes. Upon surrender of any such
Note for purchase in accordance with the foregoing provisions, such Note shall
be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Change of Control Purchase
Date shall be payable to the Holders of such Notes, registered as such on the
relevant Regular Record Dates according to the terms and the provisions of
Section 2.03. If any Note tendered for purchase in accordance with the
provisions of this Section 4.21 shall not be so paid upon surrender thereof, the
principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Change of Control Purchase Date at the rate borne by such
Note. Holders electing to have Notes purchased will be required to surrender
such Notes to the Paying Agent at the address specified in the Change of Control
Purchase Notice at least one Business Day prior to the Change of Control
Purchase Date. Any Note that is to be purchased
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only in
part shall be surrendered to a Paying Agent at the office of such Paying Agent
(with, if the Company, the Registrar or the Trustee so require, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing), and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Note, without service charge, one or more new Notes of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Note so
surrendered that is not purchased.
(d) The
Company shall (i) not later than the Change of Control Purchase Date accept for
payment Notes or portions thereof tendered pursuant to the Change of Control
Offer, (ii) not later than 10:00 a.m. (New York time) on the Change of Control
Purchase Date deposit with the Trustee or with a Paying Agent an amount of money
in same day funds sufficient to pay the aggregate Change of Control Purchase
Price of all the Notes or portions thereof which are to be purchased on that
date and (iii) not later than 10:00 a.m. (New York time) on the Change of
Control Purchase Date deliver to the Paying Agent an Officers’ Certificate
stating the Notes or portions thereof accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to Holders of Notes so accepted
payment in an amount equal to the Change of Control Purchase Price of the Notes
purchased from each such Holder, and the Company shall execute and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Note equal
in principal amount to any unpurchased portion of the Note surrendered. Any
Notes not so accepted shall be promptly mailed or delivered by the Paying Agent
at the Company’s expense to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on the Change of Control
Purchase Date. For purposes of this Section 4.21, the Company shall choose a
Paying Agent which shall not be the Company.
(e) A tender
made in response to a Change of Control Purchase Notice may be withdrawn if the
Company receives, not later than one Business Day prior to the Change of Control
Purchase Date, a telegram, telex, facsimile transmission or letter, specifying,
as applicable:
(1) the name
of the Holder;
(2) the
certificate number of the Note in respect of which such notice of withdrawal is
being submitted;
(3) the
principal amount of the Note (which shall be $5,000 or whole multiples of $1,000
in excess thereof) delivered for purchase by the Holder as to which such notice
of withdrawal is being submitted;
(4) a
statement that such Holder is withdrawing his election to have such principal
amount of such Note purchased; and
(5) the
principal amount, if any, of such Note (which shall be $5,000 or whole multiples
of $1,000 in excess thereof) that remains subject to the original Change
of
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Control
Purchase Notice and that has been or will be delivered for purchase by the
Company.
(f) Subject
to applicable escheat laws, the Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed, together with interest or dividends, if
any, thereon (subject to Section 7.01(f) hereof), held by them for the payment
of the Change of Control Purchase Price; provided, however, that (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee in respect of a Change of Control Offer exceeds the aggregate Change of
Control Purchase Price of the Notes or portions thereof to be purchased, then
the Trustee shall hold such excess for the Company and (y) unless otherwise
directed by the Company in writing, promptly after the Business Day following
the Change of Control Purchase Date the Trustee shall return any such excess to
the Company together with interest or dividends, if any, thereon (subject to
Section 7.01(f) hereof).
(g) The
Company shall comply with the applicable tender offer rules, including Rule
14e-1 under the Exchange Act, and any other applicable securities laws or
regulations in connection with a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.21, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.21 by virtue of such conflict.
(h) Notwithstanding
the foregoing, the Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer, in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
Section
4.22. Limitation on Capital
Expenditures.
The
Company will not, and will cause its Restricted Subsidiaries not to, incur
Capital Expenditures (excluding the amount, if any, of Equity Funded Capital
Expenditures) in any fiscal year in an amount greater than the amount set forth
in the following table for the applicable fiscal year:
|
2010
|
2011
|
2012
|
2013
|
2014
|
2015
|
|||||||||||||||||
| $ | 2,640,000 | $ | 13,750,000 | $ | 14,080,000 | $ | 19,580,000 | $ | 22,220,000 | $ | 24,200,000 | |||||||||||
provided, however, that if
the amount of Capital Expenditures permitted to be made in any fiscal year as
set forth in the above table is greater than the actual amount of the Capital
Expenditures actually made in such fiscal year (the amount by which such
permitted Capital Expenditures for such fiscal year exceeds the actual amount of
Capital Expenditures for such fiscal year, the “Excess Amount”), then
the lesser of (i) such Excess Amount and (ii) 25% of the amount set forth in the
above table for the next succeeding fiscal year (such lesser amount referred to
as the “Carry-Over
Amount”) may be carried forward to the next succeeding fiscal year (the
“Succeeding Fiscal
Year”); provided
further, that the Carry-Over Amount applicable to a particular Succeeding
Fiscal Year may not be used in that fiscal year until the amount
permitted
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above to
be expended in such fiscal year has first been used in full and the Carry-Over
Amount applicable to a particular Succeeding Fiscal Year may not be carried
forward to another fiscal year.
For purposes hereof, “Equity Funded Capital
Expenditures” shall mean Capital Expenditures of Company and its
Restricted Subsidiaries that are funded using proceeds of a cash capital
contribution received from the Equity Holders.
Section
4.23. Corporate
Existence.
Subject
to Article Five, the Company and Parent shall do or cause to be done all things
necessary to preserve and keep in full force and effect its limited liability
company or corporate existence, as the case may be, rights (certificate or
charter, as the case may be, and statutory) and franchises and those of each
Subsidiary thereof; provided that Parent and the
Company shall not be required to preserve any such right or franchise if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders.
Section
4.24. Calculation of Original
Issue Discount.
The
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on the Notes as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE
FIVE
Successors
Section
5.01. Consolidation, Merger or
Sale of Assets.
(a) The
Company will not, in a single transaction or through a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets to any Person or group of Persons, or permit any of
its Restricted Subsidiaries to enter into any such transaction or series of
transactions, if such transaction or series of transactions, in the aggregate,
would result in a sale, assignment, conveyance, transfer, lease or disposition
of all or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a Consolidated basis to any other Person or group of
Persons (other than the Company or a Guarantor), unless at the time and after
giving effect thereto:
(1) either
(a) the Company will be the continuing corporation or (b) the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment, conveyance, transfer,
lease or disposition all or substantially all of the properties and assets of
the Company and its Restricted Subsidiaries on a Consolidated basis (the “Surviving Entity”)
will be a corporation, partnership (if there is a corporate co-issuer of the
Notes) or limited
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liability
company duly organized and validly existing under the laws of the United States
of America, any state thereof or the District of Columbia and such Person
expressly assumes, by a supplemental indenture, in a form reasonably
satisfactory to the Trustee (and otherwise acceptable to the Collateral Agent),
all the obligations of the Company under the Notes, this Indenture and the
Security Documents, as the case may be, and the Notes and this Indenture and the
Security Documents will remain in full force and effect as so supplemented (and
any Guarantees will be confirmed as applying to such Surviving Entity’s
obligations);
(2) immediately
before and immediately after giving effect to such transaction on a pro forma basis (and
treating any Indebtedness not previously an obligation of the Company or any of
its Restricted Subsidiaries which becomes the obligation of the Company or any
of its Restricted Subsidiaries as a result of such transaction as having been
incurred at the time of such transaction), no Default or Event of Default will
have occurred and be continuing;
(3) immediately
before and immediately after giving effect to such transaction on a pro forma basis (on the
assumption that the transaction occurred on the first day of the four-quarter
period for which financial statements are available ending immediately prior to
the consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma calculation),
the Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) could incur $1.00 of additional Indebtedness
(other than Permitted Debt) under paragraph (a) of Section 4.07 hereof or, if
not, the Company’s Consolidated Fixed Charge Coverage Ratio on such basis is
higher than its Consolidated Fixed Charge Coverage Ratio immediately prior to
such transaction;
(4) at the
time of the transaction, each Guarantor, if any, unless it is the other party to
the transactions described above, will have by supplemental indenture confirmed
that its Guarantee shall apply to such Person’s obligations under this Indenture
and the Notes;
(5) at the
time of the transaction, if any of the property or assets of the Company or any
of its Restricted Subsidiaries would thereupon become subject to any Lien,
Section 4.10 hereof is complied with;
(6) the
Collateral owned by or transferred to the Surviving Entity will (a) continue to
constitute Collateral under this Indenture and the Security Documents, (b) be
subject to the Lien in favor of the Trustee for the benefit of the Holders of
the Notes, and (c) not be subject to any Lien, other than Permitted
Liens;
(7) to the
extent that the assets of the Person which is merged or consolidated with or
into the Surviving Entity are assets of the type which would constitute
Collateral under the Security Documents, the Surviving Entity will take such
action as may be reasonably necessary to cause such property and assets to be
made subject to the Lien of the Security Documents in the manner and to the
extent required in this Indenture or any
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of the
Security Documents and shall take all reasonably necessary action so that such
Lien is perfected to the extent required by the Security Documents;
and
(8) at the
time of the transaction, the Company or the Surviving Entity will have
delivered, or caused to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion
of Counsel, each to the effect that such consolidation, merger, transfer, sale,
assignment, conveyance, lease or other transaction and the supplemental
indenture in respect thereof comply with this Indenture and that all conditions
precedent therein provided for relating to such transaction have been complied
with.
(b) Except as
provided under Section 11.04 hereof, each Guarantor will not, and the Company
will not cause or permit a Guarantor to, in a single transaction or through a
series of related transactions, (x) consolidate with or merge with or into any
other Person (other than the Company or any other Guarantor) or (y) sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets to any Person or group of Persons (other than the
Company or any other Guarantor) or permit any of its Restricted Subsidiaries to
enter into any such transaction or series of transactions if such transaction or
series of transactions, in the aggregate, in the case of clause (y) would result
in a sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Guarantor and its
Restricted Subsidiaries on a Consolidated basis to any other Person or group of
Persons (other than the Company or any Guarantor), unless at the time and after
giving effect thereto:
(1) either
(a) the Guarantor will be the continuing corporation in the case of a
consolidation or merger involving the Guarantor or (b) the Person (if other than
the Guarantor) formed by such consolidation or into which such Guarantor is
merged or the Person which acquires by sale, assignment, conveyance, transfer,
lease or disposition of all or substantially all of the properties and assets of
the Guarantor and its Restricted Subsidiaries on a Consolidated basis (the
“Surviving Guarantor
Entity”) will be a corporation, limited liability company, limited
liability partnership, partnership, trust or other entity duly organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and such Person expressly assumes, by a
supplemental indenture, in a form reasonably satisfactory to the Trustee, all
the obligations of such Guarantor under its Guarantee of the Notes and this
Indenture and the Security Documents, and such Guarantee, this Indenture and the
Security Documents will remain in full force and effect, and in connection
therewith such Person executes and delivers such other agreements, causes such
instruments and Uniform Commercial Code financing statements to be filed and
recorded in such jurisdictions and takes such other actions as may be required
by applicable law to continue the validity and enforceability, and perfect or
continue the perfection, of the Liens created under the Security Documents on
the Collateral owned by or transferred to such Person;
(2) immediately
before and immediately after giving effect to such transaction on a pro forma basis, no
Default or Event of Default will have occurred and be continuing;
and
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(3) at the
time of the transaction such Guarantor or the Surviving Guarantor Entity will
have delivered, or caused to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion
of Counsel, each to the effect that such consolidation, merger, transfer, sale,
assignment, conveyance, lease or other transaction and the supplemental
indenture in respect thereof comply with this Indenture and that all conditions
precedent therein provided for relating to such transaction have been complied
with;
provided, however, that this
paragraph (b) shall not apply to any Guarantor whose Guarantee of the Notes is
unconditionally released and discharged in accordance with Section 11.04
hereof.
(c) In the
event of any transaction (other than a lease) described in and complying with
the conditions listed in paragraphs (a) and (b) above in which the Company or
any Guarantor, as the case may be, is not the continuing corporation, the
successor Person formed or remaining or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor, as the case may be, and the Company or any
Guarantor, as the case may be, shall be discharged from all obligations and
covenants under this Indenture and the Notes or its Guarantee, as the case may
be, and the Security Documents.
(d) Notwithstanding
the foregoing, the Company or any Guarantor may merge with an Affiliate
incorporated or organized solely for the purpose of reincorporating or
reorganizing the Company or Guarantor in another jurisdiction to realize tax or
other benefits.
ARTICLE
SIX
Defaults
and Remedies
Section
6.01. Events of
Default.
An Event
of Default will occur under this Indenture if:
(1) there
shall be a default in the payment of any interest on any Note when it becomes
due and payable, and such default shall continue for a period of 30
days;
(2) there
shall be a default in the payment of the principal of (or premium, if any, on)
any Note at its Maturity;
(3) there
shall be a default in the performance or breach of the provisions of Article
Five, the Company shall have failed to make or consummate a Collateral Asset
Sale Offer or an Asset Sale Offer in accordance with Section 4.11 hereof, or the
Company shall have failed to make or consummate a Change of Control Offer in
accordance with Section 4.21 hereof;
(4) there
shall be a default in the performance, or breach, of any covenant or agreement
of the Company or any Guarantor under this Indenture or any Guarantee (other
than a default in the performance, or breach, of a covenant or agreement which
is specifically dealt with in clause (1), (2) or (3) above) and such default or
breach shall continue for a period of 30 days after written notice has been
given, by certified mail, (1)
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to the
Company by the Trustee or (2) to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the outstanding
Notes;
(5) (a) any
default in the payment of the principal of, or, premium, if any, or interest on,
any Indebtedness that shall have occurred under any of the agreements,
indentures or instruments under which the Company or any Restricted Subsidiary
then has outstanding Indebtedness in excess of $5.0 million when the same shall
become due and payable in full and such default shall have continued after any
applicable grace period and shall not have been cured or waived and, if not
already matured at its final maturity in accordance with its terms, the holder
of such Indebtedness shall have the right to accelerate such Indebtedness or (b)
an event of default as defined in any of the agreements, indentures or
instruments described in clause (a) of this clause (5) shall have occurred and
the Indebtedness thereunder, if not already matured at its final maturity in
accordance with its terms, shall have been accelerated;
(6) any
Guarantee of Parent or a Significant Subsidiary shall for any reason cease to
be, or shall for any reason be asserted in writing by Parent or any such
Significant Subsidiary or the Company not to be, in full force and effect and
enforceable in accordance with its terms, except to the extent contemplated by
this Indenture and any such Guarantee;
(7) one or
more judgments, orders or decrees of any court or regulatory or administrative
agency for the payment of money in excess of $5.0 million, either individually
or in the aggregate, shall be rendered against the Company or any Restricted
Subsidiary or any of their respective properties and shall not be discharged and
either (a) any creditor shall have commenced an enforcement proceeding upon such
judgment, order or decree or (b) there shall have been a period of 60
consecutive days during which a stay of enforcement of such judgment or order,
by reason of an appeal or otherwise, shall not be in effect;
(8) the entry
of a decree or order by a court having jurisdiction in the premises adjudging
the Company, Parent or any Significant Subsidiary bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustments or composition of or in respect of the Company, Parent or any
Significant Subsidiary under any Bankruptcy Law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company, Parent or any Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
90 consecutive days;
(9) the
institution by the Company, Parent or any Significant Subsidiary of proceedings
to be adjudicated bankrupt or insolvent, or the consent by it to the institution
of bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
Bankruptcy Law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company, Parent or any Significant Subsidiary or
of any substantial part of its property, or the
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making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become
due;
(10) either
(a) the Senior Agent under the Credit Agreement or (b) if the Credit Agreement
shall no longer be in force and effect, any holder of at least $5.0 million in
aggregate principal amount of Indebtedness of the Company or any Restricted
Subsidiary shall commence judicial proceedings to foreclose upon assets of the
Company or any of its Restricted Subsidiaries having an aggregate Fair Market
Value, individually or in the aggregate, in excess of $5.0 million or shall have
exercised any right under applicable law or applicable security documents to
take ownership of any such assets in lieu of foreclosure; and
(11) unless
all of the Collateral has been released from the Second Priority Liens in
accordance with the provisions of the Security Documents, default by the Company
or any Restricted Subsidiary in the performance of the Security Documents which
adversely affects the enforceability, validity, perfection or priority of the
Second Priority Liens on a material portion of the Collateral granted to the
Collateral Agent for the benefit of the Trustee and the Holders of the Notes,
the repudiation or disaffirmation by the Company or any Restricted Subsidiary of
its obligations under the Security Documents or the determination in a judicial
proceeding that any security interest granted in the Collateral pursuant to any
Security Documents is unenforceable or invalid against the Company or any
Significant Subsidiary party thereto for any reason with respect to a material
portion of the Collateral (which default, repudiation, disaffirmation or
determination is not rescinded, stayed, or waived by the Persons having such
authority pursuant to the Security Documents or otherwise cured within 60 days
after the Company receives written notice thereof specifying such occurrence
from the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Notes and demanding that such default be remedied).
Section
6.02. Acceleration.
(a) If an
Event of Default (other than as specified in Section 6.01(8) or (9) above) shall
occur and be continuing with respect to this Indenture, the Trustee or the
Holders of not less than 30% in aggregate principal amount of the Notes then
outstanding may, and the Trustee at the request of such Holders shall, declare
all unpaid principal of, premium, if any, and accrued interest on all Notes to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders of the Notes) and upon any such declaration,
such principal, premium, if any, and interest shall become due and payable
immediately. Any accrued and unpaid interest then due and payable
shall be paid in cash only. If an Event of Default specified in
Section 6.01(8) or (9) above occurs and is continuing, then all the Notes shall
ipso facto become
due and payable immediately in an amount equal to the principal amount of the
Notes, together with accrued and unpaid interest, if any, to the date the Notes
become due and payable, without any declaration or other act on the part of the
Trustee or any Holder of Notes. Thereupon, the Trustee may, at its discretion,
proceed to protect and enforce the rights of the Holders of Notes by appropriate
judicial proceedings.
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In
addition to acceleration of maturity of the Notes, if an Event of Default occurs
and is continuing, the Trustee will have the right to exercise remedies with
respect to the Collateral, such as foreclosure, as are available under this
Indenture, the Security Documents and at law.
(b) After a
declaration of acceleration, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the Holders of a majority in
aggregate principal amount of Notes outstanding by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences
if:
(1) the
Company has paid or deposited with the Trustee a sum sufficient to pay (A) all
sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, (B) all overdue interest on all Notes then outstanding, (C) the
principal of, and premium, if any, on any Notes then outstanding which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Notes and (D) to the extent that payment of
such interest is lawful, interest upon overdue interest at the rate borne by the
Notes;
(2) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and
(3) all
Events of Default, other than the non-payment of principal of, premium, if any,
and interest on the Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in this
Indenture.
No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
(c) In the
event of a declaration of acceleration of the Notes because an Event of Default
has occurred and is continuing as a result of the acceleration of any Pari Passu
Indebtedness specified in Section 6.01(5) above, the declaration of acceleration
of the Notes shall be automatically annulled if the holders of any Indebtedness
described in Section 6.01(5) have rescinded the declaration of acceleration in
respect of such Indebtedness within 30 days of the date of such declaration and
if (i) the annulment of the acceleration of the Notes would not conflict with
any judgment or decree of a court of competent jurisdiction and (ii) all
existing Events of Default, except non-payment of principal or interest on the
Notes that became due solely because of the acceleration of the Notes, have been
cured or waived.
(d) The
Company is required to notify the Trustee within five Business Days of the
occurrence of any Default. The Company is required to deliver to the Trustee, on
or before a date not more than 60 days after the end of each fiscal quarter and
not more than 120 days after the end of each fiscal year, a written statement as
to compliance with this Indenture, including whether or not any Default has
occurred. The Trustee is 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 of the Notes unless such Holders offer to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred thereby.
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(e) In the
case of any Event of Default occurring by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to the optional redemption
provisions of this Indenture, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes. If an Event of Default occurs during any time that the Notes are
outstanding, by reason of any willful action (or inaction) taken (or not taken)
by or on behalf of the Company with the intention of avoiding the premium
payable upon optional redemption of the Notes, then the premium specified in
this Indenture shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
Section
6.03. Other
Remedies.
(a) If an
Event of Default occurs and is continuing, the Trustee may (subject to the terms
of the Subordination Agreement) pursue any available remedy to collect the
payment of principal, premium, if any, or interest (including any default
interest) on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
(b) 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
and during the continuance of 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.
The
Holders of not less than a majority in aggregate principal amount of the Notes
outstanding may on behalf of the Holders of all outstanding Notes waive any past
Default or Event of Default under this Indenture and its consequences, except a
Default or Event of Default (1) in the payment of the principal of, premium, if
any, or interest on any Note (which may only be waived with the consent of each
Holder of Notes affected) or (2) in respect of a covenant or provision which
under this Indenture cannot be modified or amended without the consent of the
Holder of each Note affected by such modification or amendment. To
the extent permitted by the TIA, the consent, waiver, direction or vote of
Holders which are also Affiliates of the Company (but excluding the Company and
its Subsidiaries) in connection with any action contemplated by this Section
6.04 shall not be disregarded. The Company shall
deliver to the Trustee an Officers’ Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such
consents. In case of any such waiver, the Company, the Trustee and the Holders
shall be restored to their former positions and rights hereunder and under the
Notes, respectively. This Section 6.04 shall be in lieu of Section 316(a)(1)(B)
of the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded
from this Indenture and the Notes, as permitted by the TIA. 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.
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Section
6.05. Control by
Majority.
Holders
of a majority in principal amount of the then outstanding Notes may (subject to
the terms of the Subordination Agreement) 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. To the extent
permitted by the TIA, the consent, waiver, direction or vote of Holders which
are also Affiliates of the Company (but excluding the Company and its
Subsidiaries) in connection with any action contemplated by this Section 6.05
shall not be disregarded. However, the Trustee may refuse to follow any
direction that conflicts with law, this Indenture or the Subordination Agreement
or 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. This Section 6.05 shall be in lieu of Section 316(a)(1)(A)
of the TIA and such 316(a)(1)(A) is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA. 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) if it determines that withholding notice is in their
interest.
Section
6.06. Limitation on
Suits.
(a) A Holder
has a right to institute any proceeding with respect to this Indenture, or the
Notes or any Guarantees, only if:
(1) the
Holder gives to the Trustee written notice of a continuing Event of
Default;
(2) the
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 of a Note or Holders of Notes offer and, if requested, provide to the
Trustee reasonable indemnity against any loss, liability or expense that might
be incurred by it in connection with the request or direction;
(4) the
Trustee does not comply with the request within 15 days after receipt of the
request and the offer and, if requested, the provision of indemnity;
and
(5) during
such 15-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
written request.
(b) 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, if any, or interest on such Note, on or
after the respective due dates expressed in such 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
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not be
impaired or affected without the consent of such Holder, except that no Holder
shall have the right to institute any such suit, 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 Liens
of the Security Documents upon any property or assets subject to the
Liens.
Section
6.08. Collection Suit by
Trustee.
If an
Event of Default specified in Section 6.01(1) or (2) above 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, if any, interest remaining unpaid on the Notes and
interest on overdue principal and premium, if any, 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 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
Guarantor (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 securities or 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.
(a) Subject
to the terms of the Subordination Agreement, if the Trustee collects any money
pursuant to this Article Six, it shall pay out the money in the following
order:
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First: to
the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense 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, if any, interest ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if
any, and interest, respectively; and
Third: to
the Company or to such party as a court of competent jurisdiction shall
direct.
(b) 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 and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 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 ten percent in principal
amount of the then outstanding Notes.
ARTICLE
SEVEN
Trustee
Section
7.01. Duties of
Trustee.
(a) If an
Event of Default has occurred and is continuing, and is actually known to the
Trustee, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture and the Security Documents, 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:
(i) the
duties of the Trustee shall 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
(ii) 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 shall
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examine
the certificates and opinions to determine whether or not they conform on their
face 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:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section
7.01;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section
6.05 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 shall require the Trustee to expend or risk its own
funds or incur any liability. The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(f) Money
held in trust by the Trustee need not be segregated from other funds and need
not be held in an interest-bearing account, in each case except to the extent
required by law or by any other provision of this Indenture. The Trustee (acting
in any capacity hereunder) shall not be liable for interest on any money
received by it hereunder unless the Trustee otherwise agrees in writing with the
Company.
Section
7.02. Certain Rights of
Trustee.
(a) The
Trustee may conclusively rely upon any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall 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.
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(c) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(d) The
Trustee shall 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 shall be sufficient if signed by an Officer
of the Company.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture or the Security Documents at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of such event is sent to the Trustee in accordance with
Section 13.02 hereof, and such notice references the Notes.
(h) Subject
to Section 7.01(b)(ii) hereof, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records, and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reasons of such inquiry or
investigation.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
(j) Except
with respect to Section 4.01 hereof, the Trustee shall have no duty to inquire
as to the performance of the Company with respect to the covenants contained in
Article 4. In addition, the Trustee shall not be deemed to have knowledge of an
Event of Default except (x) any Default or Event of Default occurring pursuant
to Sections 4.01, 6.01(1) or 6.01(2) or (y) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.
(k) Delivery
of reports, information and documents to the Trustee under Section 4.03 hereof
is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of the
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covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).
(l) In no
event shall the Trustee be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
Section
7.03. Individual Rights of
Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may become a creditor of, or otherwise deal with, the Company or
any of its Affiliates with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest as
described in the TIA, it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue as trustee 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 shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, 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 shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall 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. The Trustee makes no representation as to the
existence, validity, value, genuineness, perfection, priority or the
collectibility of any security or other document or other instrument held by or
delivered to the Trustee or the Collateral Agent under this Indenture, the
Security Documents or the Subordination Agreement.
Section
7.05. Notice of
Default.
If a
Default or Event of Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or
Event of Default within 45 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of, premium 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 hereof, and
for so long as Notes remain outstanding, the Trustee shall 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 shall
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comply
with TIA Section 313(b)(2). The Trustee shall 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 shall be mailed
to the Company and filed with the Commission and each stock exchange on which
the Notes are listed in accordance with TIA Section 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange or
any delisting thereof.
Section
7.07. Compensation and
Indemnity.
(a) The
Company shall pay to the Trustee (in its capacity as Trustee, and, to the extent
it has been appointed as such, as Collateral Agent, Paying Agent and Registrar)
from time to time reasonable compensation for its acceptance of this Indenture
and services hereunder in accordance with a written schedule provided by the
Trustee to the Company. The Trustee’s compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable and customary
disbursements, advances and reasonable out-of-pocket expenses incurred or made
by it in addition to the compensation for its services. Such expenses shall
include the reasonable and customary compensation, disbursements and expenses of
the Trustee’s agents and counsel.
(b) The
Company shall indemnify the Trustee in its capacity as Trustee, and, to the
extent it has been appointed as such, as Collateral Agent against any and all
losses, liabilities or reasonable out-of-pocket expenses incurred by it arising
out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by either of the Company or 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 or willful
misconduct. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of their obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable and customary fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably
withheld.
(c) The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
(d) To secure
the Company’s payment obligations in this section, the Trustee shall 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 shall survive the satisfaction and discharge of this
Indenture.
(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
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the
services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy
Law.
Section
7.08. Replacement of
Trustee.
(a) A
resignation or removal of the Trustee and appointment of a successor Trustee
shall 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. The Holders of a majority in
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:
(i) the
Trustee fails to comply with Section 7.10 hereof;
(ii) 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;
(iii) a
custodian or public officer takes charge of the Trustee or its property;
or
(iv) 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 shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in
principal amount of the 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 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of
Notes of at least 10% in principal amount of the then outstanding Notes may
petition at the expense of the Company 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
three months, fails to comply with Section 7.10, 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 shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall 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.
Notwithstanding replacement of
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the
Trustee pursuant to this Section 7.08, the Company’s obligations under Section
7.07 hereof shall 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 Person, the successor Person
without any further act shall be the successor Trustee.
Section
7.10. Eligibility;
Disqualification.
There
shall 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 (or its corporate parent shall have) a combined capital and surplus
of at least $100.0 million as set forth in its most recent published annual
report of condition.
This
Indenture shall 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. The Trustee
hereby waives any right to setoff any claim that it may have against the Company
in any capacity (other than as Trustee and Paying Agent) against any of the
assets of the Company held by the Trustee; provided, however, that if the Trustee
is or becomes a lender of any other Indebtedness permitted hereunder to be pari
passu with the Notes, then such waiver shall not apply to the extent of such
Indebtedness.
ARTICLE
EIGHT
Defeasance
and Covenant Defeasance
Section
8.01. Option to Effect Legal
Defeasance or Covenant Defeasance.
The
Company may, at its option, and at any time, 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 Eight.
Section
8.02. Legal Defeasance and
Discharge.
Upon the
Company’s exercise of the option applicable to this Section 8.02, the Company
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to
all outstanding Notes and all obligations of the Guarantors shall be deemed to
have been discharged with respect to their obligations under the Guarantees on
the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Company
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and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and Guarantees, respectively, which shall
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 (a) and
(b) below, and to have satisfied all of their other obligations under such Notes
and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from Funds in Trust (as defined in Section 8.04 hereof and as more fully
set forth in such Section) payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due, (b) the Company’s
obligations with respect to such Notes under Article Two and Section 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (d) this Article Eight. Subject to compliance with this Article
Eight, 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 shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from its obligations, and each
Restricted Subsidiary shall be released from its obligations, under the
covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.14, 4.16, 4.17, 4.18, 4.19, 4.21, 4.22, 4.23, 5.01 and Article Ten hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed “outstanding” for all other purposes hereunder
(it being understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Company and each Restricted Subsidiary may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall 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) shall
not constitute Events of Default.
Section
8.04. Conditions to Legal
Defeasance or Covenant Defeasance.
The
following shall be the conditions to the application of either Section 8.02 or
8.03 hereof to the outstanding Notes:
(a) the
Company must irrevocably deposit or cause to be deposited with the Trustee, in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes cash in United States dollars, U. S.
Government Obligations, or a
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combination
thereof (“Funds in
Trust”), in such amounts as, in the aggregate, will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm, to pay and discharge the
principal of, premium, if any, and interest on the outstanding Notes on the
Stated Maturity (or on any date prior to the Stated Maturity (such date being
referred to as the “Defeasance Redemption
Date”)) if, at or prior to electing either Legal Defeasance or Covenant
Defeasance, the Company shall have delivered to the Trustee an irrevocable
notice to redeem all of the outstanding Notes;
(b) in the
case of Legal Defeasance, the Company shall have delivered to the Trustee an
opinion of independent counsel in the United States stating 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 independent counsel in the United States 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;
(c) in the
case of Covenant Defeasance, the Company shall have delivered to the Trustee an
opinion of independent counsel in the United States to the effect 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;
(d) no
Default or Event of Default shall have occurred and be continuing on the date of
such deposit or insofar as clause (8) or (9) of Section 6.01 is concerned, at
any time during the period ending on the 91st day after the date of
deposit;
(e) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture or any other
material agreement or instrument to which the Company, any Guarantor or any
Restricted Subsidiary is a party or by which any of them is bound;
(f) the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the
holders of the Notes or any Guarantee over the other creditors of the Company or
any Guarantor with the intent of defeating, hindering, delaying or defrauding
creditors of the Company, any Guarantor or others; and
(g) the
Company will have delivered to the Trustee an Officers’ Certificate and an
opinion of independent counsel, each stating that all conditions precedent
provided for relating to either the Legal Defeasance or the Covenant Defeasance,
as the case may be, have been complied with.
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Section
8.05. Deposited Money and U.S.
Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions.
(a) Subject
to Section 8.06 hereof, all cash in United States dollars and non-callable U. S.
Government Obligations (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 shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(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 interest, but such money need not be segregated from
other funds except to the extent required by law.
(b) The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash in United States dollars or non-callable
U. S. Government Obligations 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.
(c) Anything
in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any cash
in United States dollars or non-callable U.S. Government Obligations held by it
as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants, investment bank, or appraisal
firm expressed in a written certification thereof delivered to the Trustee
(which may be the opinion delivered under Section 8.04(a) 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 the
Company.
Any cash
in United States dollars or non-callable U.S. Government Obligations deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company upon its
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such cash and non-callable U. S. Government Obligations, and all
liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, shall 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 cash and non-callable
U.S. Government Obligations remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such cash and non-callable U.S.
Government Obligations then remaining shall be repaid to the
Company.
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Section
8.07. Reinstatement.
If the
Trustee or Paying Agent is unable to apply any cash in United States dollars or
non-callable U.S. Government Obligations 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 obligations under this Indenture and the Notes
shall 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
make any payment of principal of, premium, if any, or interest on any Note
following 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 held by the Trustee or Paying Agent.
ARTICLE
NINE
Amendment,
Supplement and Waiver
Section
9.01. Without Consent of Holders
of Notes.
(a) Notwithstanding
Section 9.02 hereof, the Company, any Guarantor, any other obligor under the
Notes and the Trustee may modify, supplement or amend this Indenture, the Notes,
any Security Document or the Subordination Agreement without the consent of any
Holder of a Note:
(1) to
evidence the succession of another Person to the Company, a Guarantor, or any
other obligor under the Notes, and the assumption by any such successor of the
covenants of the Company, such Guarantor or such obligor in this Indenture and
in the Notes, any Guarantee and the Security Documents in accordance with
Section 5.01 hereof;
(2) to add to
the covenants of the Company, any Guarantor or any other obligor under the Notes
for the benefit of the Holders of the Notes or to surrender any right or power
conferred upon the Company or any Guarantor or any other obligor under the
Notes, as applicable, in this Indenture, the Notes, in any Guarantee or in any
of the Security Documents;
(3) to cure
any ambiguity, or to correct or supplement any provision in this Indenture, the
Notes or any Guarantee which may be defective or inconsistent with any other
provision in this Indenture, the Notes, any Guarantee or any Security
Document;
(4) to make
any provision with respect to matters or questions arising under this Indenture,
the Notes, any Guarantee, the Subordination Agreement or any Security Document;
provided that such
provisions shall not adversely affect the Holders of the Notes in any material
respect;
(5) to add a
Guarantor or additional obligor under this Indenture or permit any Person to
guarantee the Notes and/or obligations under this Indenture;
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(6) to
release a Guarantor as provided in this Indenture;
(7) to
evidence and provide the acceptance of the appointment of a successor Trustee
under this Indenture;
(8) to
mortgage, pledge, hypothecate or grant a security interest in favor of the
Trustee for the benefit of the Holders of the Notes as additional security for
the payment and performance of all or any portion of the Note Obligations, in
any property, or assets, including any of which are required to be mortgaged,
pledged or hypothecated, or in which a security interest is required to be
granted to or for the benefit of the Trustee or the Collateral Agent pursuant to
this Indenture, any of the Security Documents or otherwise;
(9) to
release Collateral from the Lien of this Indenture and the Security Documents
when permitted or required by the Subordination Agreement, Security Documents or
this Indenture;
(10) to
provide for the issuance of Additional Notes under this Indenture in accordance
with the limitations set forth in this Indenture; or
(11) to comply
with the rules of any applicable securities depositary.
(b) Upon the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amendment or supplement, and upon receipt
by the Trustee of the documents described in Section 7.02 and Section 9.06
hereof, the Trustee shall join with the Company in the execution of any such
amendment or supplement 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 shall not be obligated to enter into such
amendment or supplement that affects its own rights, duties or immunities under
this Indenture or otherwise.
(c) After an
amendment or supplement under this Section 9.01 becomes effective, the Company
shall mail to the Holders affected thereby a notice briefly describing the
amendment or supplement. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
such amendment or supplement.
Section
9.02. With Consent of Holders of
Notes.
(a) Except as
provided below in this Section 9.02, the Company, any Guarantor, any other
obligor under the Notes and the Trustee may amend or supplement this Indenture,
the Notes, the Subordination Agreement and the Security Documents with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes (including Additional Notes, if any) then outstanding (including
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). Subject to Sections 2.10 and 6.04, the Holders of a majority
in aggregate principal amount of the outstanding Notes voting as a single class
(including consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes) may waive any existing Default or Event of Default
or compliance by the
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Company
with any provision of this Indenture, the Subordination Agreement, the Security
Documents or the Notes without notice to any other Holder. However,
without the consent of each Holder affected (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes), an
amendment or waiver under this Section 9.02 may not (with respect to any Notes
held by a non-consenting Holder):
(1) change
the Stated Maturity of the principal of, or any installment of interest on, or
change to an earlier date any redemption date of, or waive a default in the
payment of the principal of, premium, if any, or interest on, any such Note
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration) or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which the principal of any
such Note or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the redemption
date);
(2) amend,
change or modify the obligation of the Company to make and consummate a
Collateral Asset Sale Offer or an Asset Sale Offer with respect to any Asset
Sale or Asset Sales in accordance with Section 4.11 hereof or the obligation of
the Company to make and consummate a Change of Control Offer in the event of a
Change of Control in accordance with Section 4.21 hereof after the occurrence of
a Change of Control, including, in each case, amending, changing or modifying
any definitions related thereto;
(3) reduce
the percentage in principal amount of such outstanding Notes, the consent of
whose Holders is required for any such amendment or supplemental indenture, or
the consent of whose Holders is required for any waiver or compliance with
certain provisions of this Indenture or the Security Documents;
(4) modify
Section 9.01 or this Section 9.02 or any of the other provisions of this
Indenture relating to supplemental indentures requiring the consent of Holders
or relating to the waiver of past defaults or relating to the waiver of certain
covenants, except to increase the percentage of such outstanding Notes required
for such actions or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each such Note
affected thereby;
(5) except as
otherwise permitted under Section 5.01 hereof, consent to the assignment or
transfer by the Company or any Guarantor of any of its rights and obligations
under this Indenture;
(6) voluntarily
release, other than in accordance with this Indenture, any Guarantee of any
Guarantor;
(7) amend or
modify any of the provisions of this Indenture in any manner which subordinates
the Notes issued hereunder in right of payment to any other
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Indebtedness
of the Company or which subordinates any Guarantee in right of payment to any
other Indebtedness of the Guarantor issuing any such Guarantee; or
(8) permit
the release of Collateral or amend or modify any provisions of the Security
Documents other than (x) in accordance with the terms of the Subordination
Agreement, the Security Documents and this Indenture and (y) as permitted by
paragraph 9.01(a) above, except for any release, amendment or modification that
would not adversely affect the Holders of the Notes in any material
respect.
(b) The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, the Holders on such record date, or its duly
designated proxies, and only such Persons, shall be entitled to consent to such
amendment, supplement or waiver, whether or not such Holders remain Holders
after such record date; provided that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be canceled and of no further effect.
(c) Upon the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amendment, supplement or waiver, and upon
the filing with the Trustee of evidence reasonably 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 9.06 hereof, the Trustee shall
join with the Company in the execution of such amendment, supplement or waiver
unless such amendment, supplement or waiver 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 shall not be obligated to, enter into
such amendment, supplement or waiver.
(d) It shall
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 shall be sufficient if such consent approves the substance
thereof.
(e) After an
amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall 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, shall not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or
waiver.
Section
9.03. Compliance with
TIA.
Every
amendment, waiver or supplement of this Indenture, the Notes or any Security
Document shall comply with the TIA as then in effect.
Section
9.04. Revocation and Effect of
Consents.
(a) 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
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Note,
even if notation of the consent is not made on any Note. However, subject to
Section 9.02(b), 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.
(b) A consent
to any amendment, supplement or waiver under this Indenture, the Notes or any
Security Document by any Holder given in connection with a purchase, tender or
exchange of such Holder’s Notes shall not be rendered invalid by such purchase,
tender or exchange.
Section
9.05. Notation on or Exchange of
Notes.
(a) 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 shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or
waiver.
(b) Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
Section
9.06. Trustee to Sign Amendments,
Etc.
The
Trustee shall sign any amendment, supplement or waiver authorized pursuant to
this Article Nine if the amendment, supplement or waiver does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. None of the
Company nor any Guarantor may sign an amendment, supplement or waiver until its
Board of Directors or trustees or sole member (or committee serving a similar
function), as the case may be, approves it. In executing any amendment,
supplement or waiver, the Trustee shall be entitled to receive and (subject to
Section 7.01 hereof) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
amendment, supplement or waiver is authorized or permitted by this
Indenture.
ARTICLE
TEN
Collateral
Section
10.01. Security
Documents.
(a) The
payment of all Note Obligations when due (whether on an Interest Payment Date,
at maturity, by acceleration, repurchase, redemption or otherwise) shall be
secured as provided in the Security Documents which the Company and the
Guarantors have entered into simultaneously with the execution of this Indenture
and shall be secured as provided in all Security Documents hereafter delivered
as required or permitted by this Indenture.
(b) The
Company and each of the Guarantors represents, covenants and agrees that each of
them have and shall at all times have, full right, power and lawful authority to
grant, bargain, sell, release, convey, hypothecate, assign, mortgage, pledge,
transfer and confirm the property constituting the Collateral pursuant to the
Security Documents to which such
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Persons
are party, free and clear of all Liens (other than First Priority Liens and
other Permitted Liens), and that (i) it will forever warrant and defend the
title to the same against the claims of all Persons (except as to First Priority
Liens and other Permitted Liens), (ii) the Company and each of the Guarantors,
as applicable, will execute, acknowledge and deliver to the Trustee such further
assignments, transfers, assurances or other instruments as the Trustee may
reasonably require and (iii) the Company and each of the Guarantors, as
applicable, will do or cause to be done all such acts as may be reasonably
required by the Trustee, to confirm to the Trustee such Lien on the Collateral,
or any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of the Security Documents, this
Indenture, the Notes and the Guarantees. The Company and each of the Guarantors
further covenants and agrees that each Security Document, as applicable, creates
or will create (when delivered) a valid Second Priority Lien (subject to
Permitted Liens) on the Collateral subject thereto.
(c) Each
Holder of Notes, by its acceptance of a Note, consents and agrees to the terms
of each Security Document and the Subordination Agreement (including the
provisions providing for foreclosure and release of Collateral), authorizes and
directs the Trustee to appoint U.S. Bank National Association as Collateral
Agent on the Issue Date and directs the Collateral Agent to enter into the
Security Documents and the Subordination Agreement, and authorizes and empowers
each of the Trustee and the Collateral Agent to bind the Holders of Notes as set
forth in the Security Documents and the Subordination Agreement and to perform
its respective obligations and exercise its respective rights and powers
thereunder. The Collateral Agent, solely in that separate capacity, shall have
only the express functions and duties set forth in the Security Documents and
the Subordination Agreement or as directed by the Trustee in performance
thereof, shall be entitled to each of the rights, privileges, protections, duty
limitations, immunities, indemnity, reimbursement, and benefits as are provided
to the Trustee pursuant to Section 6.05 and Article Seven hereof, shall not
possess or exercise discretionary duties in such performance and shall act only
as directed by the Trustee in connection with any Event of Default.
(d) Concurrently
with (i) a Person becoming a Guarantor or (ii) a Lien on any asset of the
Company or its Restricted Subsidiaries being granted in favor of the Collateral
Agent, the Company shall, or shall cause the applicable Restricted Subsidiary
to, among other things:
(1) in the
case of personal property, execute and deliver to the Collateral Agent such
UCC-1 financing statements or take such other actions as shall be necessary or
desirable to perfect and protect the Collateral Agent’s Lien on and security
interest in such assets or property and the second priority thereof (subject
only to Permitted Liens);
(2) in the
case of real property, execute and deliver to the Trustee:
(a) a
Mortgage, under which the Company or such Restricted Subsidiary shall grant to
the Collateral Agent a second priority lien on and security interest in such
real property and any related fixtures (subject only to Permitted
Liens);
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(b) survey
(for fee-owned real property) and title insurance (provided that (i) any
mortgagee title insurance policy in respect of any owned real property shall
include additional endorsements for survey, public road access and so-called
comprehensive coverage, if available, and (ii) with regard to real property
acquired after the Issue Date, any survey shall be sufficient for the title
insurance company to issue the so-called comprehensive endorsement to the title
insurance policy and remove the standard survey exception from the title
insurance policy), covering any real property that is owned by such Restricted
Subsidiary in an amount at least equal to the purchase price of such real
property;
(c) UCC-1
fixture filings; and
(d) such
other documents required by this Indenture; and
(3) upon
request of the Trustee, promptly deliver to the Trustee Opinions of Counsel as
to the enforceability and perfection of such Liens and security
interests.
(e) As among
the Holders, the Collateral shall be held for the equal and ratable benefit of
the Holders without preference, priority or distinction of any thereof over any
other.
Section
10.02. Recording.
(a) The
Company and the Guarantors shall cause, at the Company’s and the Guarantors’
expense, this Indenture and each Security Document, and all amendments or
supplements thereto, to be registered, recorded and filed and/or re-recorded
and/or re-filed and/or renewed and/or assigned in such manner and in such place
or places, if any, as may be reasonably required by the Trustee in order to
record, perfect, preserve, protect, maintain and enforce the Second Priority
Liens (subject only to the First Priority Liens and other Permitted Liens)
created by the Security Documents on the Collateral. The Company and the
Guarantors each hereby authorizes the filing of such financing or continuation
statements, or amendments thereto, and the Company and the Guarantors will
execute and deliver to the Collateral Agent such other instruments or notices,
as may be necessary or as Collateral Agent may reasonably request, in order to
perfect and preserve the security interest granted or purported to be granted
hereby or in the Security Documents. The Company and the Guarantors each hereby
authorizes the Collateral Agent to file, transmit, or communicate, as
applicable, financing statements and amendments describing the Collateral as
“all personal property of debtor” or “all assets of debtor” or words of similar
effect, in order to perfect the Collateral Agent’s security interest in the
Collateral without such grantor’s signature. The Company and the Guarantors each
also hereby ratifies its authorization for the Collateral Agent to have filed in
any jurisdiction any financing statements filed prior to the date hereof. The
Company shall pay all mortgage, mortgage recording, stamp, intangible or other
similar taxes, charges or fees required to be paid under all applicable law in
connection with the execution, delivery, recordation, filing, perfection or
enforcement of the Second Priority Liens under any of the Security
Documents.
(b) The
Company shall furnish to the Trustee and the Collateral Agent promptly after the
execution and delivery of this Indenture an Opinion of Counsel either
(i)
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stating
that in the opinion of such counsel all action has been taken with respect to
the recording, registering and filing of this Indenture, financing statements or
other instruments or otherwise necessary to make effective the Liens intended to
be created by the Security Documents and reciting the details of such action, or
(ii) stating that, in the opinion of such counsel, no such action is necessary
to make such Lien effective. Such Opinion of Counsel shall cover the
necessity for recordings, registrations and filings required in all relevant
jurisdictions. Such Opinion of Counsel may contain such
qualifications, assumptions and limitations as are customary for such
opinions.
(c) The
Company and the Guarantors shall furnish to the Trustee and the Collateral Agent
within three months after each anniversary of the Issue Date, an Opinion of
Counsel, dated as of such date, stating either that (i) in the opinion of such
counsel, all action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and refiling of all supplemental
indentures, financing statements, continuation statements or other instruments
of further assurance or otherwise as is necessary to maintain the effectiveness
of the Liens intended to be created by the Security Documents and reciting the
details of such action or (ii) in the opinion of such counsel, no such action is
necessary to maintain the effectiveness of such Liens. Such Opinion
of Counsel shall cover the necessity of recordings, registrations, filing,
re-recordings, re-registrations and refilings in all relevant
jurisdictions.
(d) The
Company and the Guarantors shall otherwise comply with the provisions of Section
314(b) and, as applicable Sections 314(c), (d) and (e) of the TIA.
(e) The
Company and the Guarantors acknowledge that all After-Acquired Property shall be
subject to the terms and conditions of the Security Documents. The
Company and the Guarantors shall comply with the provisions of the Security
Documents with respect to Second Priority Liens on After-Acquired
Property.
Section
10.03. Possession of the
Collateral.
(a) Until the
occurrence of an Event of Default, the Company or the relevant Restricted
Subsidiary may possess, manage, operate and enjoy, as applicable, the Collateral
in accordance with the terms of this Indenture, the Notes, the Guarantees and
the Security Documents.
(b) Notwithstanding
the foregoing, all amounts received by the Trustee as proceeds of any part of
the Collateral (including Net Cash Proceeds in the case of an Asset Sale and Net
Loss Proceeds in the case of an Event of Loss) and all amounts of money,
securities, letters of credit and other evidences of indebtedness deposited with
or held by the Trustee in the Collateral Account in accordance with this
Indenture and any Security Document shall (subject to the terms of the
Subordination Agreement) be held by the Trustee as security for the obligations
of the Company and the Guarantors under this Indenture, the Notes, any
Guarantees and the Security Documents until applied in accordance with the terms
of this Indenture.
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Section
10.04. Release of
Collateral.
(a) The
Trustee shall not at any time release Collateral from the Second Priority Liens
created by this Indenture and the Security Documents unless such release is in
accordance with the provisions of this Indenture and the Security
Documents.
(b) Collateral
may be released from the Liens created by the Security Documents at any time or
from time to time, and the Security Documents may be terminated, in accordance
with the provisions of the Security Documents or in accordance with this
Indenture. In addition, upon the request of the Company pursuant to
an Officers’ Certificate and Opinion of Counsel certifying that all conditions
precedent hereunder have been met, the Trustee will release Collateral that is
sold, conveyed, or disposed of in compliance with the provisions of this
Indenture. Upon receipt of such Officers’ Certificate and Opinion of Counsel,
the Trustee will execute, deliver and acknowledge any necessary or proper
instruments of termination or release to evidence the release of any Collateral
permitted to be released pursuant to this Indenture or the Security Documents.
The release of any Collateral from the terms hereof and of the Security
Documents or the release of, in whole or in part, the Liens created by the
Security Documents, or the termination of the Security Documents, will not be
deemed to impair the Liens on the Collateral in contravention of the provisions
hereof if and to the extent that the Liens on Collateral are released, or the
Security Documents are terminated, pursuant to this Indenture or the applicable
Security Documents. The Trustee and each of the Holders acknowledge that a
release of Collateral or a Lien in accordance with the terms of the Security
Documents will not be deemed for any purpose to be an impairment of the Lien on
the Collateral in contravention of the terms of this Indenture. To the extent
applicable, the Company and each obligor on the Notes shall cause Section 314(d)
of the TIA relating to the release of property or securities from the Lien
hereof and of the Security Documents to be complied with. Any certificate or
opinion required by Section 314(d) of the TIA may be made by an officer of the
Company, except in cases which Section 314(d) of the TIA requires that such
certificate or opinion be made by an independent person. In releasing any
Collateral pursuant to the terms of this Indenture, or any Security Document,
the Trustee shall be entitled to receive, and shall be fully protected in
relying upon, in addition to the documents required by Section 13.04, an
Officers’ Certificate certifying that such release is authorized or permitted by
this Indenture and the Security Documents and the Subordination Agreement and
that all conditions precedent, if any, to such release have been
satisfied.
(c) Second
Priority Liens securing the Note Obligations shall automatically and without the
need for any further action by any Person be released:
(1) in whole,
as to all property subject to such Second Priority Liens which has been taken by
eminent domain, condemnation or other similar circumstances;
(2) in whole,
as to all property subject to such Second Priority Liens, upon:
(i) payment
in full of the principal of, accrued and unpaid interest and premium on the
Notes and all other Note Obligations; or
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(ii) satisfaction
and discharge of this Indenture as set forth under Article Twelve hereof;
or
(iii) Legal
Defeasance or Covenant Defeasance of this Indenture as set forth under Article
Eight hereof;
(3) in part,
as to any property that (a) is sold, transferred or otherwise disposed of by the
Company or one of its Restricted Subsidiaries in a transaction not prohibited by
this Indenture, at the time of such sale, transfer or disposition, to the extent
of the interest sold, transferred or disposed of or (b) is owned or at any time
acquired by a Guarantor that has been released from its Guarantee, concurrently
with the release of such Guarantee;
(4) to the
extent required by the Subordination Agreement, upon any release of a First
Priority Lien thereon by the Senior Agent or as otherwise directed by the Senior
Agent; provided, however, that if there is
reinstated a Lien securing obligations under the Credit Agreement on any or all
of the Collateral upon which the Second Priority Lien securing Note Obligations
has been released pursuant to this clause (4) then, the Second Priority Lien
securing the Note Obligations on such Collateral will also be deemed reinstated;
and
(d) The
Trustee shall execute and deliver to the Company and the Guarantors, at the
Company’s and Guarantors’ expense, all documents that such parties shall
reasonably request to evidence such release. Such documents shall be without
recourse to or warranty by the Trustee.
Section
10.05. Permitted Ordinary Course
Activities with Respect to Collateral.
(a) So long
as no Default or Event of Default under this Indenture exists or would result
therefrom, the Company and the Restricted Subsidiaries may, without any release
or consent by the Trustee or the Collateral Agent, conduct ordinary course
activities with respect to Collateral, including:
(i) selling
or otherwise disposing of, in any transaction or series of related transactions,
any property subject to the Second Priority Lien of the Security Documents which
has become worn out, defective or obsolete or not used or useful in the
business;
(ii) abandoning,
terminating, canceling, releasing or making alterations in or substitutions of
any leases or contracts subject to the Second Priority Lien of this Indenture or
any of the Security Documents;
(iii) surrendering
or modifying any franchise, license or permit subject to the Second Priority
Lien of this Indenture or any of the Security Documents which it may own or
under which it may be operating;
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(iv) altering,
repairing, replacing, changing the location or position of and adding to its
structures, machinery, systems, equipment, fixtures and
appurtenances;
(v) granting
a non-exclusive license of any intellectual property;
(vi) selling,
transferring or otherwise disposing of inventory in the ordinary course of
business;
(vii) making
cash payments (including for the scheduled repayment of Indebtedness) from cash
that is at any time part of the Collateral in the ordinary course of business
that are not otherwise prohibited by this Indenture and the Security Documents;
and
(viii) abandoning
any intellectual property which is no longer used or useful in the Company’s
business.
(b) Nothing
in this Article Ten shall limit the right of each of the Company and the
Restricted Subsidiaries to sell, lease or otherwise deal in or dispose of its
property or assets that do not constitute Collateral, subject only to the
provisions of Article Four hereof.
(c) Nothing
in this Article Ten shall modify or waive the obligations of the Company and the
Restricted Subsidiaries to comply with the covenants contained in other Articles
of this Indenture relating to the sale, lease or other disposition of its
property or assets or otherwise.
Section
10.06. Purchaser
Protected.
In no
event shall any purchaser in good faith or other transferee of any Collateral
purported to be released hereunder be bound to ascertain the authority (if any)
of the Trustee to direct the Collateral Agent to execute the release or to
inquire as to the satisfaction of any conditions required by the provisions
hereof for the exercise of such authority or to see to the application of any
consideration given by such purchaser or other transferee; nor shall any
purchaser or other transferee of any Collateral permitted to be sold, disposed
of or transferred by this Article Ten, be under obligation to ascertain or
inquire into the authority of the Company or any Guarantor, as applicable, to
make any such sale or other transfer.
Section
10.07. Actions by the
Trustee.
Subject
to the provisions of the Subordination Agreement and the Security Documents and
Article Six, the Trustee shall have the power, but without any obligation to
exercise such power, to take in its sole discretion and without the consent of
the Holders all actions it deems necessary or appropriate in order to (i)
enforce any of the terms of the Security Documents and (ii) to collect and
receive all amounts payable in respect of the obligations of the Company and any
Guarantors under the Security Documents and this Indenture. The Trustee shall
have the power to institute and maintain such suits and proceedings as it may
deem expedient in order to prevent any impairment of the Collateral by any act
that may be unlawful or in violation of this Indenture or the Security
Documents, and such suits and proceedings as the
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Trustee
may deem expedient to preserve or protect its interests and the interests of the
Holders of the Notes in the Collateral and in the principal, interest, issues,
profits, rents, revenues and other income arising therefrom, including the power
to institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid, if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
hereunder or under any of the Collateral Documents, or be prejudicial to the
interests of the Holders of the Notes or the Trustee. No duty beyond that set
forth in Section 7.01 is imposed on the Trustee pursuant to this Section 10.07.
All items to be delivered to the Trustee pursuant to this Article Ten shall also
be delivered to the Collateral Agent.
Section
10.08. Withdrawal of Net Loss
Proceeds.
Net Loss
Proceeds may be withdrawn from the Collateral Account by the Company and shall
be paid by the Trustee upon a notice from the Company delivered to the Trustee
to be applied for any purpose permitted by Section 4.16 hereof upon receipt by
the Trustee of the following:
(a) an
Officers’ Certificate, dated not more than 30 days prior to the date of the
application for the withdrawal and payment of such Net Loss Proceeds setting
forth:
(i) that such
funds are being used in accordance with Section 4.16 for the purposes briefly
described in such Officers’ Certificate; and
(ii) that all
conditions precedent herein provided for relating to such withdrawal and
application have been complied with; and
(b) an
Opinion of Counsel substantially to the effect that upon the basis of the
accompanying documents specified in this Section 10.08, all conditions precedent
herein provided for relating to such withdrawal and application have been
complied with.
Upon
compliance with the foregoing provisions of this Section 10.08, the Trustee
shall, upon receipt of a notice from the Company, pay to the Company or its
designee, from the Collateral Account, an amount of Net Loss Proceeds equal to
the amount stated in the Officers’ Certificate required by clause (i) of
paragraph (a) of this Section 10.08.
Section
10.09. Withdrawal of Net Cash
Proceeds to Fund a Collateral Asset Sale Offer.
Net Cash
Proceeds of Collateral received by the Trustee pursuant to the provisions of
Section 4.11 hereof when a Collateral Asset Sale Offer has been made in
accordance therewith may be withdrawn by the Company and shall be paid by the
Trustee to the Paying Agent for application in accordance with Section 4.11
hereof upon a notice from the Company to the Trustee and upon receipt by the
Trustee of an Officers’ Certificate, dated not more than three Business Days
prior to the Collateral Asset Sale Offer Date stating:
(i) that no
Default or Event of Default shall have occurred and be continuing after giving
effect to such application;
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(ii) (x) that
such proceeds constitute Net Cash Proceeds of Collateral, (y) that pursuant to
and in accordance with Section 4.11 hereof, the Company has made a Collateral
Asset Sale Offer and (z) the amount of Net Cash Proceeds to be applied to the
repurchase of the Notes pursuant to the Collateral Asset Sale
Offer;
(iii) the
Collateral Asset Sale Offer Date; and
(iv) that all
conditions precedent herein provided for relating to such withdrawal and
application have been complied with.
Upon
compliance with the foregoing provisions of this Section 10.09, the Trustee
shall apply the Net Cash Proceeds as directed and specified by such a notice
from the Company, subject to Section 4.11 hereof.
ARTICLE
ELEVEN
Guarantees
Section
11.01. Guarantee.
(a)
Subject to this Article Eleven, each of the
Guarantors hereby, jointly and severally, fully and unconditionally, guarantees,
on a senior secured basis, 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: (i) the principal of,
premium, 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
(subject in all cases to any applicable grace period provided herein), and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any 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 shall 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 shall be 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 or thereof, the
recovery of any judgment against either of 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. Subject to Section 6.06 hereof,
each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of either of the
Company, any right to require a proceeding first against either of the Company,
protest, notice and all demands
687581.0001 WEST 6473583
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whatsoever
and covenant that this Guarantee shall 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 of the Company or the Guarantors, any
amount paid by either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and
effect.
(d) Each
Guarantor agrees that it shall 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, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six hereof for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations as
provided in Article Six hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Guarantee. Each Guarantor that makes a payment or distribution
under its Guarantee shall have the right to seek contribution from any
non-paying Guarantor, in a pro rata amount based on the net assets of each
Guarantor determined in accordance with GAAP, so long as the exercise of such
right does not impair the rights of the Holders under the
Guarantee.
(e) The
Obligations of each Guarantor under its Guarantee pursuant to this Article
Eleven shall rank equally in right of payment with other existing and future
senior Indebtedness of such Guarantor, and senior in right of payment to all
existing and future Subordinated Indebtedness of such Guarantor.
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 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 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 which, after giving effect to all other contingent and
fixed liabilities of such Guarantor, and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Article Eleven, will result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Until such time as
the Notes are paid in full, each Guarantor hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including any such right arising under federal Bankruptcy Law) or otherwise by
reason of any payment by it pursuant to the provisions of this Article
Eleven.
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Section
11.03. Execution and Delivery of
Guarantee.
(a) The Note
Guarantee of any Guarantor shall be evidenced solely by its execution and
delivery of this Indenture (or, in the case of any Guarantor that is not party
to this Indenture on the Issue Date, a supplemental indenture thereto) and not
by an endorsement on, or attachment to, any Note of any Note Guarantee or
notation thereof. To effect any Guarantee of any Guarantor not a
party to this Indenture on the Issue Date, such future Guarantor shall execute
and deliver a supplemental indenture substantially in the form of Exhibit E
hereto, which supplemental indenture shall be executed and delivered on behalf
of such Guarantor by an Officer of such Guarantor.
(b) Each
Guarantor hereby agrees that its Guarantee set forth in Section 11.01 shall be
and remain in full force and effect notwithstanding any failure to endorse on
any Note a notation of such Guarantee.
(c) The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Guarantees set forth in this Indenture on
behalf of each of the Guarantors.
Section
11.04. Releases of
Guarantors.
(a) A
Subsidiary Guarantor will be deemed automatically and unconditionally released
and discharged from all of its obligations under its Guarantee without any
further action on the part of the Trustee or any Holder of the
Notes:
(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, if the sale or other disposition of all
or substantially all of the assets of that Guarantor complies with Section 4.11
hereof, including the application of the Net Proceeds therefrom, and Section
4.09 hereof and all other applicable provisions of this Indenture;
(2) in
connection with any sale of all of the Capital Stock of such Guarantor to a
Person that is not (either before or after giving effect to such transaction)
the Company or a Restricted Subsidiary, if the sale of all such Capital Stock of
that Guarantor complies with Section 4.11 hereof, including the application of
the Net Proceeds therefrom, and Section 4.09 hereof and all other applicable
provisions of this Indenture;
(3) in
connection with any sale of Capital Stock of a Guarantor to a Person that
results in the Guarantor no longer being a Restricted Subsidiary of the Company,
if (i) the sale of such Capital Stock of that Guarantor complies with Section
4.11 hereof, including the application of the Net Proceeds therefrom, and
Section 4.09 hereof and all other applicable provisions of this Indenture and
(ii) following such sale, such Guarantor is no longer the obligor under or
guarantor of any Indebtedness of the Company or any Restricted Subsidiary (and
no commitments in respect of such Indebtedness are outstanding);
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(4) if the
Company properly designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary in accordance with the provisions of this Indenture;
or
(5) if the
Notes are discharged in accordance with the procedures set forth in Article
Eight or Article Twelve hereof;
provided that any such
release and discharge pursuant to clauses (1) through (5) above shall occur only
to the extent that all obligations of such Guarantor under all of its guarantees
of, and under all of its pledges of assets or other security interests which
secure any, Indebtedness of the Company shall also terminate at such
time.
(b) Any
Guarantor not released from its obligations under its Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the
other obligations of any Guarantor under this Indenture as provided in this
Article Eleven.
ARTICLE
TWELVE
Satisfaction
and Discharge
Section
12.01. Satisfaction and
Discharge.
This
Indenture will be discharged and will cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of the Notes as
expressly provided for in this Indenture) as to all outstanding Notes under this
Indenture when:
(a) either
(1) all such
Notes theretofore authenticated and delivered (except lost, stolen or destroyed
Notes which have been replaced or paid or Notes whose payment has been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust as provided for in this Indenture)
have been delivered to the Trustee for cancellation; or
(2) all Notes
not theretofore delivered to the Trustee for cancellation (a) have become due
and payable, (b) will become due and payable at their Stated Maturity within one
year, or (c) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company; and
(b) the
Company or any Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount in U.S. dollars, U.S.
Government Obligations, or a combination thereof, sufficient to pay and
discharge the entire Indebtedness on the Notes not theretofore delivered to the
Trustee for cancellation, including principal of, premium, if any, and accrued
interest at such Maturity, Stated Maturity or redemption date;
(c) no
Default or Event of Default shall have occurred and be continuing on the date of
such deposit;
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(d) the
Company or any Guarantor has paid or caused to be paid all other sums payable
under this Indenture by the Company and any Guarantor; and
(e) the
Company has delivered to the Trustee an Officers’ Certificate and an opinion of
independent counsel each stating that (1) all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have been
complied with and (2) such satisfaction and discharge will not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company, any Guarantor or
any Subsidiary is a party or by which the Company, any Guarantor or any
Subsidiary is bound.
Section
12.02. Deposited Money and U.S.
Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions.
Subject
to Section 12.03 hereof, all money and non-callable U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 12.02, the “Trustee”) pursuant to
Section 12.01 hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(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 interest, but such money need not be segregated from
other funds except to the extent required by law.
Section
12.03. Repayment to the
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 interest on any Note and
remaining unclaimed for two years after such principal, and premium, 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) shall be discharged from such trust; and the
Holder of such Note shall thereafter 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, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, shall at
the expense of the Company cause to be published once, in The New
York Times or The Wall
Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such money then remaining shall be repaid to the Company.
ARTICLE
THIRTEEN
Miscellaneous
Section
13.01. 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 any of its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
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Section
13.02. Notices.
(a) Any
notice or communication by either of the Company or any Guarantor, on the one
hand, or the Trustee on the other hand, to the other is duly given if in writing
and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), facsimile or overnight air courier guaranteeing next
day delivery, to the others’ address:
|
If
to the Company or any Guarantor:
|
|
|
UNO
RESTAURANT HOLDINGS CORPORATION
|
|
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UNO
RESTAURANTS, LLC
|
|
|
000
Xxxxxxx Xxxx Xxxx
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Xxxxxx,
Xxxxxxxxxxxxx 00000
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|
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Facsimile:
(000) 000-0000
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|
|
Attention:
Xxxxx Xxxxxxxxx, Chief Financial Officer
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|
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with
copies to:
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Weil,
Gotshal & Xxxxxx LLP
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Facsimile:
(000) 000-0000
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Attention:
Xxxxx Xxxxxxx
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If
to the Trustee:
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U.
S. Bank National Association
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|
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00
Xxxxxxxxxx Xxxxxx
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XX-XX-XX0X
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|
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Xx.
Xxxx, XX 00000-0000
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Facsimile:
(000) 000-0000
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|
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Attention:
Xxxxxxx Xxxxxxxxxx
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|
(b) The
Company, the Guarantors or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or
communications.
(c) All
notices and communications (other than those sent to Holders) shall be deemed to
have been duly given: (i) at the time delivered by hand, if personally
delivered; (ii) five Business Days after being deposited in the mail, postage
prepaid, if mailed; (iii) when receipt acknowledged, if telecopied; (iv) and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
(d) Any
notice or communication to a Holder shall 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 shall also be so mailed to any Person
described in TIA Section 313(c), to the
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extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
(e) 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.
(f) If the
Company mails a notice or communication to Holders, it shall mail a copy to the
Trustee and each Agent at the same time.
(g) Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
(h) Where
this Indenture provides for notice of any event to a Holder of a Global Note,
such notice shall be sufficiently given if given to the Depositary for such Note
(or its designee), pursuant to its Applicable Procedures, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice.
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 its 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.
(a) Upon any
request or application by the Company to the Trustee to take any action under
this Indenture or any Security Document, the Company shall furnish to the
Trustee:
(i) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 13.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture or such Security Document
relating to the proposed action have been satisfied; and
(ii) to the
extent required under Section 314 of the TIA, an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which shall 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.
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Section
13.05. Statements Required in
Certificate or Opinion.
(a) 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)) shall comply with the provisions of TIA Section 314(e)
and shall include:
(i) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(ii) 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;
(iii) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(iv) a
statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
(b) In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(c) Any
certificate or opinion of an officer of any Person may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of, or representation by,
counsel or any Opinion of Counsel may be based, insofar as it relates to factual
matters, upon certificates of public officials or upon a certificate or opinion
of, or representations by, an officer or officers of the Company or any
Guarantor (including an Officers’ Certificate) stating that the information with
respect to such factual matters is in the possession of the Company or such
Guarantor unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
(d) Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
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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.
No
director, officer, employee, member or stockholder of the Company, Parent or any
Restricted Subsidiary, as such, will have any liability for any obligations of
the Company, Parent or the Restricted Subsidiaries under the Notes, this
Indenture or the Guarantees to which they are a party, 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 LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE SECURITY DOCUMENTS, THE NOTES AND THE 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. Consent to
Jurisdiction.
Any legal
suit, action or proceeding arising out of or based upon this Indenture, the
Notes, the Guarantees, the Security Documents or the transactions contemplated
hereby (“Related
Proceedings”) may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of
New York in each case located in the City of New York (collectively, the “Specified Courts”),
and each party irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court, as to which such jurisdiction is non-exclusive) of such courts in any
such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party’s address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that a Related Proceeding has been brought in an inconvenient
forum.
Section
13.10. [Intentionally
Omitted].
Section
13.11. Successors.
All
agreements of the Company in this Indenture and the Notes shall bind their
successors. All agreements of the Trustee in this Indenture shall bind its
successors. All agreements of each Guarantor in this Indenture shall bind its
successors, except as otherwise provided in Section 5.01.
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Section
13.12. Severability.
In case
any provision in this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
13.13. Counterpart
Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same
agreement.
Section
13.14. Acts of
Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by the Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing,
and may be given or obtained in connection with a purchase of, or tender offer
or exchange offer for, outstanding Notes; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Company
if made in the manner provided in this Section 13.14.
(b) Without
limiting the generality of this Section 13.14, unless otherwise provided in or
pursuant to this Indenture: (i) a Holder, including a Depositary or its nominee
that is a Holder of a Global Note, may give, make or take, by an agent or agents
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be given, made or taken by Holders, and a Depositary or its nominee
that is a Holder of a Global Note may duly appoint in writing as its agent or
agent members of, or participants in, such Depositary holding interests in such
Global Note in the records of such Depositary; and (ii) with respect to any
Global Note the Depositary for which is DTC, any consent or other action given,
made or taken by an Agent Member of DTC by electronic means in accordance with
the Automated Tender Offer Procedures system or other customary procedures of,
and pursuant to authorization by, DTC shall be deemed to constitute the “Act” of
the Holder of such Global Note, and such “Act” shall be deemed to have been
delivered to the Company and the Trustee upon the delivery by DTC of an “agent’s
message” or other notice of such consent or other action having been so given,
made or taken in accordance with the customary procedures of DTC.
(c) The fact
and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to such witness, notary or officer the execution thereof. Where
such execution is by a signer acting in a capacity other than
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his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems
sufficient.
(d) Notwithstanding
anything to the contrary contained in this Section 13.15, the principal amount
and serial numbers of Notes held by any Holder, and the date of holding the
same, shall be proved by the register of the Notes maintained by the Registrar
as provided in Section 2.04 hereof.
(e) If the
Company shall solicit from the Holders of the Notes any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at their option, by or pursuant to a resolution of its Board of Directors, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith or
the date of the most recent list of Holders forwarded to the Trustee prior to
such solicitation pursuant to Section 2.06 hereof and not later than the date
such solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of the then
outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the then outstanding Notes shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Note shall bind every future Holder of the same Note and
the Holder of every Note issued upon the registration or transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Note.
(g) Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Note may do so itself with regard to all or any
part of the principal amount of such Note or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such principal amount.
(h) For
purposes of this Indenture, any action by the Holders which may be taken in
writing may be taken by electronic means or as otherwise reasonably acceptable
to the Trustee.
- 131
-
Section
13.15. Benefit of
Indenture.
Nothing
in this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto, any Paying Agent, any Registrar and its
successors hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section
13.16. 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 shall in no way modify or restrict
any of the terms or provisions hereof.
Section
13.17. Trustee Not Fiduciary for
Holders of Senior Indebtedness.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders or the Company or to any
other Person cash, property or securities to which any holders of senior
Indebtedness shall be entitled by virtue of this Agreement or
otherwise.
Section
13.18. Subordination
Agreement.
In the
event of any conflict between this Indenture or any Security Document and the
Subordination Agreement, the provisions of the Subordination Agreement shall
control. The provisions of this Section 13.18 and any other reference to actions
being subject to the Subordination Agreement or any other reference in this
Indenture or the Notes to the Subordination Agreement are solely for the benefit
of the Senior Agent (as defined in the Subordination Agreement) and the Trustee
and shall not give the Company or any Guarantor, their successors or assigns or
any other person any rights vis-à-vis the Trustee or any Holder of the
Notes.
The
Indenture Secured Obligations (as defined in the Subordination Agreement) are
subordinated in right of payment to the Credit Agreement Secured Obligations (as
defined in the Subordination Agreement) and the Liens on the Collateral securing
the Indenture Secured Obligations are subordinated to the Liens on the
Collateral securing the Credit Agreement Secured Obligations, in each case in
the manner and to the extent provided in the Subordination
Agreement.
Each
Holder, by its acceptance of a Note, authorizes and directs the Trustee on such
Holder’s behalf to execute and deliver the Subordination Agreement.
Section
13.19. Trust Indenture Act
Controls.
If any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Section 318(c) of the TIA, the imposed duties shall
control.
- 132
-
Section
13.20. Legal
Holidays.
A “Legal Holiday” used
with respect to a particular place of payment is a Saturday, a Sunday or a day
on which banking institutions in New York, New York, or at such place of payment
are not required to be open. If a payment date is a Legal Holiday at
such place, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section
13.21. Waiver of Jury
Trial.
EACH OF
THE COMPANY, THE GUARANTORS, THE TRUSTEE, THE COLLATERAL AGENT, AND BY ITS
ACCEPTANCE THEREOF, EACH HOLDER OF A NOTE, HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE, THE SECURITY
DOCUMENTS, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED BY
THIS INDENTURE.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
- 133 -
SIGNATURES
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the date first written above.
|
UNO
RESTAURANTS, LLC, a Delaware limited liability company
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
UNO
RESTAURANT HOLDINGS CORPORATION, a Delaware corporation
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
[Signature
lines for all Guarantors named in Schedule A to be provided]
|
|||
|
U.S.
BANK NATIONAL ASSOCIATION, as Trustee
|
|||
|
By:
|
|
||
|
Name:
|
Xxxxxxx
Xxxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
SCHEDULE
A
Subsidiary
Guarantors
[To
be confirmed]
|
0000
Xxxxxxxxxxxxx Xxxxx
Corporation
B.S.
Acquisition Corp.
B.S.
of Woodbridge, Inc.
Fairfax
Uno, Inc.
Kissimmee
Uno, Inc.
Marketing
Services Group,
Inc.
Newport
News Uno, Inc.
Paramus
Uno, Inc.
Pizzeria
Uno Corporation
Pizzeria
Uno of 86th
Street,
Inc.
Pizzeria
Uno of Albany Inc.
Pizzeria
Uno of Bay
Ridge,
Inc.
Pizzeria
Uno of Bayside,
Inc.
Pizzeria
Uno of Columbus
Avenue,
Inc.
Pizzeria
Uno of Forest
Hills,
Inc.
Pizzeria
Uno of Paramus,
Inc.
Pizzeria
Uno of Reston,
Inc.
Pizzeria
Uno of South
Street
Seaport, Inc.
Pizzeria
Uno of Syracuse,
Inc.
Pizzeria
Uno of Union
Station,
Inc.
Plizzettas
of Concord, Inc.
Saxet
Corporation
|
SL
Properties, Inc.
SL
Uno Burlington, Inc.
SL
Uno Ellicott City, Inc.
SL
Uno Xxxxxxxx Xxxxx, Inc.
SL
Uno Xxxxxxxxx, Inc.
SL
Uno Gurnee Xxxxx, Inc.
SL
Uno Hyannis, Inc.
SL
Uno Portland, Inc.
SL
Uno Potomac Xxxxx,
Inc.
SL
Uno Waterfront, Inc.
SLA
Brockton, Inc.
SLA
Due, Inc.
SLA
Xxxx Xxxx, Inc.
SLA
Mail II, Inc.
SLA
Mail, Inc.
SLA
Norfolk, Inc.
SLA
Su Casa, Inc.
SLA
Uno, Inc.
Uno
Enterprises, Inc.
Uno
Foods Inc.
Uno
of America, Inc.
Uno
of Astoria, Inc.
Uno
of Bangor, Inc.
Uno
of Daytona, Inc.
Uno
of Hagerstown, Inc.
Uno
of Haverhill, Inc.
Uno
of Xxxxxxxxx, Inc.
Uno
of Indiana, Inc.
Uno
of Kingstowne, Inc.
Uno
of Manassas, Inc.
Uno
of New Jersey, Inc.
Uno
of New York, Inc.
Uno
of Providence, Inc.
|
Uno
of Schaumburg, Inc.
Uno
of Xxxxxx, Inc.
Uno
Restaurant of Woburn, Inc.
UR
of Attleboro MA, LLC
UR
of Bowie MD, Inc.
UR
of Clay NY, LLC
UR
of Columbia MD, Inc.
UR
of Danbury CT, Inc.
UR
of Dover NH, Inc.
UR
of Fayetteville NY, LLC
UR
of Gainesville VA, LLC
UR
of Inner Harbor MD, Inc.
UR
of Melbourne FL, LLC
UR
of Milford CT, Inc.
UR
of Millbury MA, LLC
UR
of Nashua NH, LLC
UR
of New Hartford NY, LLC
UR
of Swampscott MA, LLC
UR
of Taunton MA, LLC
UR
of Xxxxxx NH, LLC
UR
of Virginia Beach VA, LLC
UR
of Xxxxxxx NY, LLC
UR
of Winter Garden FL, LLC
UR
of Wrentham MA, Inc.
URC,
LLC
Waltham
Uno, Inc.
|
EXHIBIT
A1
[Face of
Note]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), 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 IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
[Insert
the following paragraph (i.e., the “Private Placement Legend”) unless this Note
is an Unrestricted Global Note or an Unrestricted Definitive Note:
THIS NOTE AND THE GUARANTEES ENDORSED
HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE, THE GUARANTEES ENDORSED HEREON, NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON, BY ITS
ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND THE
GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE
GUARANTEES
A1-1
ENDORSED
HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”), EXCEPT THAT THE NOTES AND
GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON
IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND
THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO
CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E)
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
THIS NOTE
AND THE GUARANTEES ENDORSED HEREON ARE SUBJECT TO THE TERMS OF THE SUBORDINATION
AGREEMENT (AS DEFINED IN THE INDENTURE REFERRED TO HEREIN).
A1-2
CUSIP
[ ]
| No. ___ | $______________ |
UNO
RESTAURANTS, LLC
15%
Senior Subordinated Secured Notes due 2016
Uno
Restaurants LLC, a Delaware limited liability company (the “Company”), including
any successor under the Indenture hereinafter referred to, for value received,
promises to pay to [______], or its registered assigns, the principal sum of
[Amount of Note]
($[ ])
UNITED STATES DOLLARS on [__________],
2016.
Interest
Payment Dates: [_____________] and [_____________] of each year,
commencing [_______], 2016.
Regular
Record Dates: [_____________] and [_____________] of each
year.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Issue
Date: [____________], 2010
A1-3
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officer.
|
UNO
RESTAURANTS, LLC, a Delaware limited
liability
company
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
A1-4
(Form of
Trustee’s Certificate of Authentication)
This is
one of the 15% Senior Subordinated Secured Notes due 2016 described in the
within-mentioned Indenture.
U.S. BANK
NATIONAL ASSOCIATION,
as Trustee
By: ___________________________
Authorized
Signatory
Date: _____________________
A1-5
[Reverse
Side of Note]
UNO
RESTAURANTS, LLC
15%
Senior Subordinated Secured Notes due 2016
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest. The
Company promises to pay interest on the principal amount of this Note at 15% per
annum solely in cash from the date hereof until maturity, provided, however, that that, if with
respect to any Interest Payment Date that occurs prior to Maturity of any Notes,
the Company has duly elected pursuant to Section 4.01(c) of the Indenture not to
pay the entire installment of interest due on such Interest Payment Date in
cash; and if (but only if) the Company pays on such Interest Payment Date the
entire installment of interest on such designated Notes due on such Interest
Payment Date, the portion of such installment equal to the PIK Interest Amount
with respect to such Interest Payment Date (i.e., the designated portion equal
to up to one-third of the aggregate amount thereof) shall be payable by issuance
of PIK Notes in accordance with Section 2.02(a) of the Indenture and the
remainder of such installment shall be payable in cash. The Company
shall pay interest semi-annually in arrears on [_____________] and
[_____________] 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 shall accrue from the most
recent date to which interest has been paid on the Notes or, if no interest has
been paid, from the date of original issuance (or, if this Note was originally
issued after the Issue Date as an Additional Note, from the date of original
issue of this Note); 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 [________],
2011. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, in cash from time to time on demand at a rate that is 2% per
annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent
lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months. If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue on such payment for the intervening period.
2. Method of
Payment. The Company shall pay interest on the Notes (except
defaulted interest, if any) to the Persons in whose name this Note is registered
at the close of business on the [_____________] or [_____________] immediately
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 2.13 of the Indenture with respect to defaulted interest. The
Notes shall be payable as to principal, premium, if any, and interest at the
office or agency of the Company maintained for such purpose in The City of New
York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately
A1-6
available
funds shall be required with respect to principal of and interest, premium, if
any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying
Agent. Such payment shall 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, U.S. Bank National Association, the
Trustee under the Indenture, shall 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. The
Company issued the Notes under an Indenture dated as of [____________], 2010 (the
“Indenture”)
among the Company, Parent, the Guarantors named therein and the
Trustee. The Notes are subject to all such terms, and Holders are
referred to the Indenture 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 Indenture pursuant to which this Note is issued
provides that the aggregate principal amount of Notes which may be issued
thereunder is limited to $[___________], subject to
compliance with the covenants therein. The Note Obligations are
secured by the Second Priority Liens.
5. Optional
Redemption. Commencing on the Issue Date, the Company may
redeem for cash all or a portion of the Notes, on not less than 30 nor more than
60 days’ prior notice, in amounts of $5,000 or whole multiples of $1,000 in
excess thereof at the following redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest, if any,
thereon, to the applicable redemption date (subject to the rights of holders of
record on the relevant Regular Record Dates to receive interest due on an
Interest Payment Date), if redeemed during the twelve-month periods indicated
below (with Year 1 commencing on the Issue Date):
|
Redemption
Price
|
||||
|
Year
1
|
105.00%
|
|||
|
Year
2
|
103.00%
|
|||
|
Year
3
|
101.00%
|
|||
|
Year
4 and thereafter
|
100.00%
|
6. Mandatory
Redemption. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the
Notes.
7. Repurchase at Option of
Holders.
(a) Upon the
occurrence of a Change of Control, each Holder may require the Company to
purchase such Holder’s Notes in whole or in part in amounts of $5,000 or whole
multiples of $1,000 in excess thereof, at a purchase price in cash in an amount
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, thereon, to the date of purchase, pursuant to a Change of Control Offer
in accordance with the procedures set forth in the Indenture.
A1-7
(b) Under
certain circumstances described in the Indenture, the Company will be required
to apply the proceeds of Asset Sales to the repayment of the Notes and Pari
Passu Indebtedness.
8. Selection and Notice of
Redemption. If less than all of the Notes are to be redeemed
or purchased in an offer to purchase at any time, the Trustee shall select the
Notes to be redeemed or purchased among the Holders of the Notes not more than
60 days prior to the redemption date in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and
reasonable. Redemptions shall be made on a pro rata basis or on as
nearly a pro rata basis
as practicable (subject to the provisions of DTC or other
depositary). In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for
redemption. Notices of redemption may not be
conditional. If any Note is to be redeemed in part only, the notice
of redemption that relates to that Note will state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal
to the unredeemed portion of the original Note will be issued in the name of the
Holder thereof upon cancellation of the original Note. Notes called
for redemption become due on the date fixed for redemption. On and
after the redemption date, interest, if any, ceases to accrue on Notes or
portions of them called for redemption.
9. Denominations, Transfer,
Exchange. The Notes are in registered form without coupons in
denominations of $5,000 and whole multiples of $1,000 in excess
thereof. 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 is
not required to transfer or exchange any Note selected for
redemption. Also, the Company is not required to transfer or exchange
any Note for a period of 15 days before a selection of Notes to be
redeemed.
10. Persons Deemed
Owners. The registered Holder of a Note will be treated as its
owner for all purposes.
11. Amendment, Supplement and
Waiver. The Indenture or the Notes may be amended or
supplemented only as provided in the Indenture.
12. Defaults. In
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company or any 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 30% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately by
notice in writing to the Company specifying the respective Event of
Default. 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) if it determines that
withholding notice is in their interest. The Holders of not less than
a majority in aggregate principal amount of the Notes outstanding by notice to
the Trustee may on behalf of the Holders
A1-8
of all
outstanding Notes waive any past Default and its consequences under the
Indenture except a Default (1) in the payment of the principal of, premium, if
any, or interest on any Note (which may only be waived with the consent of each
Holder of Notes affected) or (2) in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
Holder of each Note affected by such modification or amendment.
13. Trustee Dealings with the
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 director, officer, employee, member 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 or the Guarantees 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.
15. Authentication. This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
16. 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.
17. Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof.
The
Company shall furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to:
UNO
RESTAURANTS, LLC
000
Xxxxxxx Xxxx Xxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Facsimile: (000)
000-0000
Attention: Chief
Financial Officer
A1-9
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).
A1-10
OPTION
OF HOLDER TO ELECT PURCHASE
If you
want to elect to have this Note purchased by the Company pursuant to Section
4.11 or 4.21 of the Indenture, check the appropriate box below:
[ ]
Section 4.11 [ ] Section 4.21
If you
want to elect to have only part of the Note purchased by the Company pursuant
to Section 4.11 or Section 4.21 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).
A1-11
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:
|
Date
of Exchange
|
Amount
of Decrease in Principal Amount at Maturity of this Global
Note
|
Amount
of Increase in Principal Amount at Maturity of this Global
Note
|
Principal
Amount Maturity of this Global Following such Decrease (or
Increase)
|
A1-12
EXHIBIT
A2
[Face of
Note]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), 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 IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THIS NOTE AND THE GUARANTEES ENDORSED
HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE, THE GUARANTEES ENDORSED HEREON, NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON, BY ITS
ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND THE
GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”), EXCEPT THAT THE
NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS
A2-1
THE NOTES
AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES
IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF
THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
THIS NOTE
AND THE GUARANTEES ENDORSED HEREON ARE SUBJECT TO THE TERMS OF THE SUBORDINATION
AGREEMENT (AS DEFINED IN THE INDENTURE REFERRED TO HEREIN).
EXCEPT AS
SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S TEMPORARY
GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE REGULATION S PERMANENT
GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED
HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL
THE EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE
MEANING OF RULE 903(B)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN
ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE
PERIOD, BENEFICIAL OWNERSHIP IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY ONLY
BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR SYSTEM OR CLEARSTREAM
LUXEMBOURG, A SOCIETE ANONYME AND ONLY (1) TO THE COMPANY, (2) WITHIN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES
IN A TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (4)
PURSUANT TO
A2-2
AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF THE CASES
(1) THROUGH (4) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND OTHER JURISDICTIONS. HOLDERS OF INTERESTS IN
THIS REGULATION S TEMPORARY GLOBAL NOTE WILL NOTIFY ANY PURCHASER OF THIS NOTE
OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL
INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY BE EXCHANGED FOR
INTERESTS IN A RESTRICTED GLOBAL NOTE ONLY IF (1) SUCH EXCHANGE OCCURS IN
CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE WITH RULE 144A, AND (2)
THE TRANSFEROR OF THE REGULATION S TEMPORARY GLOBAL NOTE FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT THE REGULATION S GLOBAL NOTE IS BEING TRANSFERRED (A) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS OWN
ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A AND (C) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
BENEFICIAL
INTERESTS IN A GLOBAL TRANSFER RESTRICTED NOTE MAY BE TRANSFERRED TO A PERSON
WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL NOTE,
WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE
PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A WRITTEN
CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT IF
SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S
OR RULE 144 (IF AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS PRIOR TO THE
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE INTEREST
TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH EUROCLEAR SYSTEM OR
CLEARSTREAM LUXEMBOURG, A SOCIETE ANONYME.
A2-3
CUSIP
[ ]
| No. ___ | $______________ |
UNO
RESTAURANTS, LLC
15%
Senior Subordinated Secured Notes due 2016
Uno
Restaurants LLC, a Delaware limited liability company (the “Company”), including
any successor under the Indenture hereinafter referred to, for value received,
promises to pay to [______], or its registered assigns, the principal sum of
[Amount of Note]
($[ ])
UNITED STATES DOLLARS on [__________],
2016.
Interest
Payment Dates: [_____________] and [_____________] of each year,
commencing [_______], 2016.
Regular
Record Dates: [_____________] and [_____________] of each
year.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Issue
Date: [____________], 2010
A2-4
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officer.
|
UNO
RESTAURANTS, LLC, a Delaware limited
liability
company
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
A2-5
(Form of
Trustee’s Certificate of Authentication)
This is
one of the 15% Senior Subordinated Secured Notes due 2016 described in the
within-mentioned Indenture.
U.S. BANK
NATIONAL ASSOCIATION, as Trustee
By: ___________________________
Authorized
Signatory
Date: _____________________
A2-6
[Reverse
Side of Note]
UNO
RESTAURANTS, LLC
15%
Senior Subordinated Secured Notes due 2016
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest. The
Company promises to pay interest on the principal amount of this Note at 15% per
annum solely in cash from the date hereof until maturity, provided, however, that that, if with
respect to any Interest Payment Date that occurs prior to Maturity of any Notes,
the Company has duly elected pursuant to Section 4.01(c) of the Indenture not to
pay the entire installment of interest due on such Interest Payment Date in
cash; and if (but only if) the Company pays on such Interest Payment Date the
entire installment of interest on such designated Notes due on such Interest
Payment Date, the portion of such installment equal to the PIK Interest Amount
with respect to such Interest Payment Date (i.e., the designated portion equal
to up to one-third of the aggregate amount thereof) shall be payable by issuance
of PIK Notes in accordance with Section 2.02(a) of the Indenture and the
remainder of such installment shall be payable in cash. The Company
shall pay interest semi-annually in arrears on [_____________] and
[_____________] 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 shall accrue from the most
recent date to which interest has been paid on the Notes or, if no interest has
been paid, from the date of original issuance (or, if this Note was originally
issued after the Issue Date as an Additional Note, from the date of original
issue of this Note); 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 [________],
2011. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, in cash from time to time on demand at a rate that is 2% per
annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent
lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months. If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue on such payment for the intervening period.
2. Method of
Payment. The Company shall pay interest on the Notes (except
defaulted interest, if any) to the Persons in whose name this Note is registered
at the close of business on the [_____________] or [_____________] immediately
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 2.13 of the Indenture with respect to defaulted interest. The
Notes shall be payable as to principal, premium, if any, and interest at the
office or agency of the Company maintained for such purpose in The City of New
York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately
A2-7
available
funds shall be required with respect to principal of and interest, premium, if
any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying
Agent. Such payment shall 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, U.S. Bank National Association, the
Trustee under the Indenture, shall 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. The
Company issued the Notes under an Indenture dated as of [____________], 2010 (the
“Indenture”)
among the Company, Parent, the Guarantors named therein and the
Trustee. The Notes are subject to all such terms, and Holders are
referred to the Indenture 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 Indenture pursuant to which this Note is issued
provides that the aggregate principal amount of Notes which may be issued
thereunder is limited to $[___________], subject to
compliance with the covenants therein. The Note Obligations are
secured by the Second Priority Liens.
5. Optional
Redemption. Commencing on the Issue Date, the Company may
redeem for cash all or a portion of the Notes, on not less than 30 nor more than
60 days’ prior notice, in amounts of $5,000 or whole multiples of $1,000 in
excess thereof at the following redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest, if any,
thereon, to the applicable redemption date (subject to the rights of holders of
record on the relevant Regular Record Dates to receive interest due on an
Interest Payment Date), if redeemed during the twelve-month periods indicated
below (with Year 1 commencing on the Issue Date):
|
Redemption
Price
|
||||
|
Year
1
|
105.00%
|
|||
|
Year
2
|
103.00%
|
|||
|
Year
3
|
101.00%
|
|||
|
Year
4 and thereafter
|
100.00%
|
6. Mandatory
Redemption. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the
Notes.
7. Repurchase at Option of
Holders.
(a) Upon the
occurrence of a Change of Control, each Holder may require the Company to
purchase such Holder’s Notes in whole or in part in amounts of $5,000 or whole
multiples of $1,000 in excess thereof, at a purchase price in cash in an amount
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, thereon, to the date of purchase, pursuant to a Change of Control Offer
in accordance with the procedures set forth in the Indenture.
A2-8
(b) Under
certain circumstances described in the Indenture, the Company will be required
to apply the proceeds of Asset Sales to the repayment of the Notes and Pari
Passu Indebtedness.
8. Selection and Notice of
Redemption. If less than all of the Notes are to be redeemed
or purchased in an offer to purchase at any time, the Trustee shall select the
Notes to be redeemed or purchased among the Holders of the Notes not more than
60 days prior to the redemption date in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and
reasonable. Redemptions shall be made on a pro rata basis or on as
nearly a pro rata basis
as practicable (subject to the provisions of DTC or other
depositary). In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for
redemption. Notices of redemption may not be
conditional. If any Note is to be redeemed in part only, the notice
of redemption that relates to that Note will state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal
to the unredeemed portion of the original Note will be issued in the name of the
Holder thereof upon cancellation of the original Note. Notes called
for redemption become due on the date fixed for redemption. On and
after the redemption date, interest, if any, ceases to accrue on Notes or
portions of them called for redemption.
9. Denominations, Transfer,
Exchange. The Notes are in registered form without coupons in
denominations of $5,000 and whole multiples of $1,000 in excess
thereof. 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 is
not required to transfer or exchange any Note selected for
redemption. Also, the Company is not required to transfer or exchange
any Note for a period of 15 days before a selection of Notes to be
redeemed.
10. Persons Deemed
Owners. The registered Holder of a Note will be treated as its
owner for all purposes.
11. Amendment, Supplement and
Waiver. The Indenture or the Notes may be amended or
supplemented only as provided in the Indenture.
12. Defaults. In
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company or any 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 30% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately by
notice in writing to the Company specifying the respective Event of
Default. 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) if it determines that
withholding notice is in their interest. The Holders of not less than
a majority in aggregate principal amount of the Notes outstanding by notice to
the Trustee may on behalf of the Holders
A2-9
of all
outstanding Notes waive any past Default and its consequences under the
Indenture except a Default (1) in the payment of the principal of, premium, if
any, or interest on any Note (which may only be waived with the consent of each
Holder of Notes affected) or (2) in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
Holder of each Note affected by such modification or amendment.
13. Trustee Dealings with the
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 director, officer, employee, member 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 or the Guarantees 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.
15. Authentication. This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
16. 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.
17. Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof.
The
Company shall furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to:
UNO
RESTAURANTS, LLC
000
Xxxxxxx Xxxx Xxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Facsimile: (000)
000-0000
Attention: Chief
Financial Officer
A2-10
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).
A2-11
OPTION
OF HOLDER TO ELECT PURCHASE
If you
want to elect to have this Note purchased by the Company pursuant to Section
4.11 or 4.21 of the Indenture, check the appropriate box below:
[ ]
Section 4.11 [ ] Section 4.21
If you
want to elect to have only part of the Note purchased by the Company pursuant
to Section 4.11 or Section 4.21 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).
A2-12
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:
|
Date
of Exchange
|
Amount
of Decrease in Principal Amount at Maturity of this Global
Note
|
Amount
of Increase in Principal Amount at Maturity of this Global
Note
|
Principal
Amount Maturity of this Global Following such Decrease (or
Increase)
|
A2-13
EXHIBIT
B
FORM
OF CERTIFICATE OF TRANSFER
UNO
RESTAURANT HOLDINGS CORPORATION
UNO
RESTAURANTS, LLC
000
Xxxxxxx Xxxx Xxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxxx, Chief Financial Officer
U.S. Bank
National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx,
XX 00000-0000
Fax:
(000) 000-0000
Attention: Xxxxxxx
Xxxxxxxxxx
Re: 15%
Senior Subordinated Secured Notes due 2016
Reference
is hereby made to the Indenture, dated as of [___________], 2010 (the
“Indenture”),
among Uno Restaurants, LLC (the “Company”), Uno
Restaurant Holdings Corporation, the Guarantors named therein, and U.S. Bank
National Association, 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 at maturity 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 Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States 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 believed and 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
B-1
on
transfer enumerated in the Private Placement Legend printed on the 144A Global
Note and/or the 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, the Regulation S Permanent Global Note or a 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, (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). 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 Note, the Regulation S
Temporary Global Note and/or the 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 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
B-2
(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 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) 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 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 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
B-3
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-4
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:
(1) 144A
Global Note (CUSIP __________); or
(2) Regulation
S Global Note (CUSIP __________); or
(3) 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:
(4) 144A
Global Note (CUSIP __________); or
(5) Regulation
S Global Note (CUSIP __________); or
(6) IAI
Global Note (CUSIP________); or
(7) 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-5
EXHIBIT
C
FORM
OF CERTIFICATE OF EXCHANGE
UNO
RESTAURANT HOLDINGS CORPORATION
UNO
RESTAURANTS, LLC
000
Xxxxxxx Xxxx Xxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxxx, Chief Financial Officer
U.S. Bank
National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx,
XX 00000-0000
Fax:
(000) 000-0000
Attention: Xxxxxxx
Xxxxxxxxxx
Re: 15%
Senior Subordinated Secured Notes due 2016
Reference
is hereby made to the Indenture, dated as of [___________], 2010 (the
“Indenture”),
among Uno Restaurants, LLC (the “Company”), Uno
Restaurant Holdings Corporation, the Guarantors named therein, and U.S. Bank
National Association, 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 at maturity 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
at maturity, 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 United States 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.
C-1
(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 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
C-2
Definitive
Note with an equal principal amount at maturity, 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 at maturity, 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-3
EXHIBIT
D
FORM
OF CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
UNO
RESTAURANT HOLDINGS CORPORATION
UNO
RESTAURANTS, LLC
000
Xxxxxxx Xxxx Xxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxxx, Chief Financial Officer
Re: 15%
Senior Subordinated Secured Notes due 2016
Reference
is hereby made to the Indenture, dated as of [___________], 2010 (the
“Indenture”),
among Uno Restaurants, LLC (the “Company”), Uno
Restaurant Holdings Corporation, the Guarantors named therein, and U.S. Bank
National Association, 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 at maturity of:
(a) beneficial
interest in a Global Note, or
(b) a
Definitive Note,
we
confirm that:
1. We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933, as
amended (the “Securities
Act”).
2. We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
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 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
D-1
or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
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 GUARANTOR SUPPLEMENTAL INDENTURE
GUARANTOR
SUPPLEMENTAL INDENTURE (this “Guarantor Supplemental
Indenture”), dated as of _________________, 20___,
among Uno Restaurants, LLC, a Delaware limited liability company (the “Company”), the
Company’s direct parent, Uno Restaurant Holdings Corporation, a Delaware
corporation (“Parent”), the
Company’s subsidiaries listed on Schedule A hereto (each, a “New Guarantor”), the
Company’s subsidiaries listed on Schedule B hereto (collectively, the “Existing Guarantors”)
and U.S. Bank National Association, as trustee under the Indenture referred to
below (the “Trustee”).
W I T N E
S S E T H
WHEREAS,
the Company, Parent, the Existing Guarantors and the Trustee are parties to an
indenture, as supplemented (the “Indenture”), dated as
of [___________], 2010,
providing for the issuance of 15% Senior Subordinated Secured Notes due 2016
(the “Notes”);
WHEREAS,
Section 9.01 of the Indenture provides that, without the consent of any Holders,
the Company, when authorized by a Board Resolution, Parent, the Existing
Guarantors and the Trustee, at any time and from time to time, may modify,
supplement or amend the Indenture to add a Guarantor or additional obligor under
the Indenture or permit any Person to guarantee the Notes and/or obligations
under the Indenture;
WHEREAS,
each New Guarantor wishes to guarantee the Notes pursuant to the
Indenture;
WHEREAS,
pursuant to the Indenture the Company, Parent, the Existing Guarantors, the New
Guarantors and the Trustee have agreed to enter into this Guarantor Supplemental
Indenture for the purposes stated herein; and
WHEREAS,
all things necessary have been done to make this Guarantor Supplemental
Indenture, when executed and delivered by the Company, Parent, the Existing
Guarantors and each New Guarantor, the legal, valid and binding agreement of the
Company, Parent and each New Guarantor, in accordance with its
terms.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, Parent,
each New Guarantor and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:
(A) Capitalized
Terms. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
E-1
(B) Guarantee. Each
New Guarantor hereby agrees to guarantee the Indenture and the Notes related
thereto pursuant to the terms and conditions of Article Eleven of the Indenture,
such Article Eleven being incorporated by reference herein as if set forth at
length herein (each such guarantee, a “Guarantee”) and such
New Guarantor agrees to be bound as a Guarantor under the Indenture as if it had
been an initial signatory thereto.
(C) Joinder to Security
Agreement. Each New Guarantor hereby agrees to be a Grantor
under the Security Agreement, has concurrently herewith executed and delivered
to the Collateral Agent a Supplement, in substantially the form of Annex 1 to
the Security Agreement, and such New Guarantor agrees to be bound as a Grantor
under the Security Agreement as if it had been an initial signatory
thereto.
(D) GOVERNING
LAW. THIS GUARANTOR SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
(E) Counterparts. The
parties may sign any number of copies of this Guarantor Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
(F) Effect of
Headings. The section headings herein are for convenience only
and shall not affect the construction hereof.
(G) The
Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Guarantor
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company, Parent, the Existing
Guarantors and the New Guarantors.
E-2
IN
WITNESS WHEREOF, the parties hereto have caused this Guarantor Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
|
UNO
RESTAURANTS, LLC, a Delaware limited liability company
|
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By:___________________________
|
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|
Name:
|
|
|
Title:
|
|
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UNO RESTAURANT HOLDINGS
CORPORATION, a Delaware corporation
|
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By:___________________________
|
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Name:
|
|
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Title:
|
|
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EACH
GUARANTOR LISTED ON
SCHEDULE
A HERETO
|
|
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By:___________________________
|
|
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Name:
|
|
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Title:
|
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EACH
GUARANTOR LISTED ON
SCHEDULE
B HERETO
|
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By:___________________________
|
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Name:
|
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Title:
|
E-3
U.S. BANK
NATIONAL ASSOCIATION,
as
Trustee
|
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By:
|
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Name:
|
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Title:
|
E-4
