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Exhibit 12
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CBRE Holding, Inc.
Issuer
16% Senior Notes Due July 20, 2011
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INDENTURE
Dated as of July 20, 2001
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State Street Bank and Trust Company
of California, N.A.
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1).................................................................. 7.10
(a)(2).................................................................. 7.10
(a)(3).................................................................. N.A.
(a)(4).................................................................. N.A.
(b)..................................................................... 7.08; 7.10
(c)..................................................................... N.A.
311(a)..................................................................... 7.11
(b)..................................................................... 7.11
(c)..................................................................... N.A.
312(a)..................................................................... 2.05
(b)..................................................................... 10.03
(c)..................................................................... 10.03
313(a)..................................................................... 7.06
(b)(1).................................................................. N.A.
(b)(2).................................................................. 7.06
(c)..................................................................... 11.02
(d)..................................................................... 7.06
314(a)..................................................................... 4.02; 10.02
(b)..................................................................... N.A.
(c)(1).................................................................. 10.04
(c)(2).................................................................. 10.04
(c)(3).................................................................. N.A.
(d)..................................................................... N.A.
(e)..................................................................... 10.05
(f)..................................................................... N.A.
315(a)..................................................................... 7.01
(b)..................................................................... 7.05; 10.02
(c)..................................................................... 7.01
(d)..................................................................... 7.01
(e)..................................................................... 6.11
316(a)(last sentence) ..................................................... 10.06
(a)(1)(A)............................................................... 6.05
(a)(1)(B)............................................................... 6.04
(a)(2).................................................................. N.A.
(b)..................................................................... 6.07
317(a)(1).................................................................. 6.08
(a)(2).................................................................. 6.09
(b)..................................................................... 2.04
318(a)..................................................................... 10.01
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01...................................................................................Definitions 1
SECTION 1.02.............................................................................Other Definitions 28
SECTION 1.03.............................................Incorporation by Reference of Trust Indenture Act 29
SECTION 1.04.........................................................................Rules of Construction 29
ARTICLE 2
The Securities
SECTION 2.01...............................................................................Form and Dating 30
SECTION 2.02..................................................................Execution and Authentication 30
SECTION 2.03....................................................................Registrar and Paying Agent 30
SECTION 2.04...........................................................Paying Agent To Hold Money in Trust 32
SECTION 2.05..........................................................................Securityholder Lists 32
SECTION 2.06.........................................................................Transfer and Exchange 32
SECTION 2.07........................................................................Replacement Securities 32
SECTION 2.08........................................................................Outstanding Securities 32
SECTION 2.09..........................................................................Temporary Securities 33
SECTION 2.10..................................................................................Cancellation 33
SECTION 2.11............................................................................Defaulted Interest 33
SECTION 2.12.................................................................................CUSIP Numbers 33
SECTION 2.13.............................................................Issuance of Additional Securities 34
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ARTICLE 3
Redemption
SECTION 3.01............................................................................Notices to Trustee 35
SECTION 3.02........................................................Selection of Securities To Be Redeemed 36
SECTION 3.03..........................................................................Notice of Redemption 36
SECTION 3.04................................................................Effect of Notice of Redemption 37
SECTION 3.05...................................................................Deposit of Redemption Price 37
SECTION 3.06...................................................................Securities Redeemed in Part 37
ARTICLE 4
Covenants
SECTION 4.01.........................................................................Payment of Securities 38
SECTION 4.02...................................................................................SEC Reports 38
SECTION 4.03....................................................................Limitation on Indebtedness 38
SECTION 4.04.............................................................Limitation on Restricted Payments 41
SECTION 4.05......................Limitation on Restrictions on Distributions from Restricted Subsidiaries 45
SECTION 4.06............................................Limitation on Sales of Assets and Subsidiary Stock 46
SECTION 4.07..........................................................Limitation on Affiliate Transactions 49
SECTION 4.08................Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries 50
SECTION 4.09.............................................................................Change of Control 50
SECTION 4.10...........................................................................Limitation on Liens 52
SECTION 4.11...........................................................................Conduct of Business 52
SECTION 4.12........................................................................Compliance Certificate 52
SECTION 4.13................................................................Payment of Additional Interest 53
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SECTION 4.14..................................................................Further Instruments and Acts 53
ARTICLE 5
Merger and Consolidation
SECTION 5.01.....................................................When Company May Merge or Transfer Assets 53
ARTICLE 6
Defaults and Remedies
SECTION 6.01.............................................................................Events of Default 54
SECTION 6.02..................................................................................Acceleration 57
SECTION 6.03................................................................................Other Remedies 57
SECTION 6.04.......................................................................Waiver of Past Defaults 57
SECTION 6.05...........................................................................Control by Majority 57
SECTION 6.06...........................................................................Limitation on Suits 58
SECTION 6.07..........................................................Rights of Holders to Receive Payment 58
SECTION 6.08....................................................................Collection Suit by Trustee 58
SECTION 6.09..............................................................Trustee May File Proofs of Claim 58
SECTION 6.10....................................................................................Priorities 59
SECTION 6.11.........................................................................Undertaking for Costs 60
SECTION 6.12..............................................................Waiver of Stay or Extension Laws 60
ARTICLE 7
Trustee
SECTION 7.01.............................................................................Duties of Trustee 60
SECTION 7.02.............................................................................Rights of Trustee 61
SECTION 7.03..................................................................Individual Rights of Trustee 62
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SECTION 7.04..........................................................................Trustee's Disclaimer 62
SECTION 7.05............................................................................Notice of Defaults 62
SECTION 7.06.................................................................Reports by Trustee to Holders 62
SECTION 7.07....................................................................Compensation and Indemnity 62
SECTION 7.08........................................................................Replacement of Trustee 63
SECTION 7.09...................................................................Successor Trustee by Merger 64
SECTION 7.10.................................................................Eligibility; Disqualification 64
SECTION 7.11.............................................Preferential Collection of Claims Against Company 64
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01..............................................Discharge of Liability on Securities; Defeasance 64
SECTION 8.02......................................................................Conditions to Defeasance 65
SECTION 8.03....................................................................Application of Trust Money 67
SECTION 8.04..........................................................................Repayment to Company 67
SECTION 8.05..........................................................Indemnity for Government Obligations 67
SECTION 8.06.................................................................................Reinstatement 67
ARTICLE 9
Amendments
SECTION 9.01....................................................................Without Consent of Holders 67
SECTION 9.02.......................................................................With Consent of Holders 68
SECTION 9.03...........................................................Compliance with Trust Indenture Act 69
SECTION 9.04.................................................Revocation and Effect of Consents and Waivers 69
SECTION 9.05.........................................................Notation on or Exchange of Securities 69
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SECTION 9.06....................................................................Trustee To Sign Amendments 69
SECTION 9.07...........................................................................Payment for Consent 70
ARTICLE 10
Miscellaneous
SECTION 10.01.................................................................Trust Indenture Act Controls 70
SECTION 10.02......................................................................................Notices 70
SECTION 10.03..................................................Communication by Holders with Other Holders 71
SECTION 10.04...........................................Certificate and Opinion as to Conditions Precedent 71
SECTION 10.05................................................Statements Required in Certificate or Opinion 71
SECTION 10.06..................................................................When Securities Disregarded 71
SECTION 10.07.................................................Rules by Trustee, Paying Agent and Xxxxxxxxx 00
SECTION 10.08...............................................................................Legal Holidays 72
SECTION 10.09................................................................................Governing Law 72
SECTION 10.10...................................................................No Recourse Against Others 72
SECTION 10.11...................................................................................Successors 72
SECTION 10.12...........................................................................Multiple Originals 72
SECTION 10.13..................................................................Table of Contents; Headings 72
Rule 144A/IAI Appendix
Exhibit 1 -- Form of Initial Security
Exhibit A -- Form of Exchange Security or Private Exchange Security
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INDENTURE dated as of July 20, 2001, between CBRE Holding, Inc.,
a Delaware corporation (the "Company") and STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A. (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
Initial Securities, Exchange Securities and Private Exchange Securities
(collectively, the "Securities"):
ITEM 2. ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
0. SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of
its Subsidiaries (a) existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or (b) assumed in connection with
the acquisition of assets from such Person and, in each case, not incurred by
such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary of the Company or such acquisition,
merger or consolidation.
"Additional Assets" means (1) any property or other assets
(other than Indebtedness and Capital Stock) used in a Related Business; (2) the
Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or (3) Capital Stock constituting a minority interest in any Person
that at such time is a Restricted Subsidiary; provided, however, that any such
Restricted Subsidiary described in clause (2) or (3) above is primarily engaged
in a Related Business.
"Additional Securities" means 16% Senior Notes Due July 20, 2011
issued from time to time after the Issue Date in accordance with the terms of
this Indenture (including 16% Senior Notes Due July 20, 2011 issued as PIK
Interest) (other than pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this
Indenture and other than Exchange Securities or Private Exchange Securities
issued pursuant to an exchange offer for other Securities outstanding under this
Indenture).
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.04, 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of Capital Stock representing 10% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of rights
or warrants to purchase such
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Capital Stock (whether or not currently exercisable) and any Person who would be
an Affiliate of any such beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of
(1) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a
Restricted Subsidiary),
(2) all or substantially all the assets of any division or
line of business of the Company or any Restricted Subsidiary or
(3) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary
(other than, in the case of (1), (2) and (3) above, (A) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary, (B) for purposes of Section 4.06 only, a
disposition that constitutes a Restricted Payment permitted by Section 4.04 or a
Permitted Investment, (C) the sale by Melody of assets purchased and/or funded
pursuant to the Melody Mortgage Warehousing Facility or the Melody Loan
Arbitrage Facility, (D) any sale of Capital Stock in, or Indebtedness or other
securities of, an Unrestricted Subsidiary, (E) a disposition of Temporary Cash
Investments in the ordinary course of business, (F) the disposition of property
or assets that are obsolete, damaged or worn out, (G) the lease or sublease of
office space in the ordinary course of business, (H) sales by Melody of debt
servicing rights not in excess of $5.0 million in the aggregate and (I) a
disposition of assets with a fair market value of less than $750,000 (a "de
minimis disposition"), so long as the sum of such de minimis disposition plus
all other de minimis dispositions previously made in the same calendar year does
not exceed $3.0 million in the aggregate);
provided, however, that a disposition of all or substantially all the assets of
the Company and its Restricted Subsidiaries taken as a whole will be governed by
Section 4.09 and/or Section 5.01 and not by Section 4.06.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended); provided, however, that if such
Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of "Capital Lease Obligation".
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"Average Life" means, as of the date of determination, with
respect to any Indebtedness the quotient obtained by dividing (1) the sum of the
products of the number of years from the date of determination to the dates of
each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bank Indebtedness" means all Obligations pursuant to the Credit
Agreement.
"Board of Directors" means the Board of Directors of the Company
or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day other than a Saturday, Sunday or a
day on which commercial banking institutions are authorized or required by law
to close in New York City.
"Capital Lease Obligation" means an obligation that is required
to be classified and accounted for as a capital lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Cash Equity Contributions" shall mean (a) the contribution to
the Company of not less than $98,800,000 in cash in the form of equity (it being
understood that (i) any contribution to the Company by RCBA of shares of common
equity of XX Xxxxxxx in excess of 2,345,900 shares will be considered a cash
contribution by RCBA in an amount equal to $16.00 multiplied by the number of
shares constituting such excess and a contribution of such amount from the
Company to XX Xxxxxxx and (ii) the transfer by designated managers of an
aggregate of up to $2.6 million of deferred compensation plan account balances
(currently reflected as cash surrender value of insurance policies, deferred
compensation plan in the financial statements of XX Xxxxxxx) to stock fund units
shall be deemed to be a cash contribution to the Company of the amount of such
transfer and a contribution of such amount from the Company to XX Xxxxxxx to the
extent (x) accounted for as equity of the Company and (y) such transfer of an
account balance results in a transfer to XX Xxxxxxx of cash from the trust
relating to such deferred compensation plan) and (b) the contribution by the
Company of the amount so received, together with the net proceeds from its sale
of the Notes, to XX Xxxxxxx as equity in exchange for Capital Stock (other than
Disqualified Stock) of XX Xxxxxxx.
"Cash Interest" means cash interest payable on the Securities.
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"XX Xxxxxxx" means CB Xxxxxxx Xxxxx Services, Inc., a Delaware
corporation.
"Change of Control" means the occurrence of any of the following
events:
(1) prior to the first underwritten public offering of
common stock of the Company or, in the case of clause (ii) below only,
such earlier time as DLJ Investment Funding, Inc. and its Affiliates
cease to own of record and beneficially, directly or indirectly, at
least 50% of the principal amount of Notes owned by DLJ Investment
Funding, Inc. and its Affiliates on the Closing Date, (i) the Permitted
Holders cease to (A) be the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of at
least 35% in the aggregate of the total voting power of the Voting Stock
of the Company, whether as a result of issuance of securities of the
Company, any merger, consolidation, liquidation or dissolution of the
Company, or any direct or indirect transfer of securities by the Company
or otherwise or (B) majority of the Board of Directors or (ii) RCBA
ceases to own of record and beneficially, directly or indirectly, a
number of shares of common stock of the Company equal to at least 50% of
the total number of shares of common stock of the Company owned of
record by RCBA as of the Closing Date, adjusted for stock splits and
stock dividends (for purposes of this clause (1) and clause (2) below,
the Permitted Holders shall be deemed to beneficially own any Voting
Stock of a Person (the "specified person") held by any other Person (the
"parent entity") so long as the Permitted Holders beneficially own (as
so defined), directly or indirectly, in the aggregate a majority of the
voting power of the Voting Stock of such parent entity);
(2) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders, is
or becomes the beneficial owner (as defined in clause (1) above, except
that for purposes of this clause (2) such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time, and except that any Person that is deemed to have
beneficial ownership of shares solely as the result of being part of a
group pursuant to Rule 13d-5(b)(1) shall be deemed not to have
beneficial ownership of any shares held by a Permitted Holder forming a
part of such group), directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of the Company; provided,
however, that the Permitted Holders beneficially own (as defined in
clause (1) above, except that in the event the Permitted Holders are
part of a group pursuant to Rule 13d-5(b)(1), the Permitted Holders
shall be deemed not to have beneficial ownership of any shares held by
persons other than Permitted Holders forming a part of such group),
directly or indirectly, in the aggregate a lesser percentage of the
total voting power of the Voting Stock of the Company than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors (for the purposes of this clause (2), such other person shall
be deemed to beneficially own any Voting Stock of a specified person
held by a parent entity, if such other person is the beneficial owner
(as defined in this clause (2)), directly or indirectly, of more than
35% of the voting power of the Voting Stock of such parent entity and
the Permitted Holders beneficially own (as defined in
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clause (1) above), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of such parent entity
and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of such parent entity);
(3) individuals who on the Issue Date constituted the Board
of Directors (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders
of the Company was approved by a vote of a majority of the directors of
the Company then still in office who were either directors on the Issue
Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office;
(4) the adoption of a plan relating to the liquidation or
dissolution of the Company or XX Xxxxxxx;
(5) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the Company,
or the sale of all or substantially all the assets of the Company
(determined on a consolidated basis) to another Person (other than, in
all such cases, a Person that is controlled by the Permitted Holders),
other than a transaction following which (A) in the case of a merger or
consolidation transaction, holders of securities that represented 100%
of the Voting Stock of the Company immediately prior to such transaction
(or other securities into which such securities are converted as part of
such merger or consolidation transaction) own directly or indirectly at
least a majority of the voting power of the Voting Stock of the
surviving Person in such merger or consolidation transaction immediately
after such transaction and in substantially the same proportion as
before the transaction and (B) in the case of a sale of assets
transaction, the transferee Person becomes the obligor in respect of the
Notes and a Subsidiary of the transferor of such assets; or
(6) the Company ceases to be the beneficial owner, directly,
of 100% of the outstanding Capital Stock of XX Xxxxxxx other than shares
of Capital Stock of XX Xxxxxxx issuable upon exercise of employee stock
options outstanding on the Issue Date.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until
a successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
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"Consolidated Coverage Ratio" as of any date of determination
means the ratio of
(x) the aggregate amount of EBITDA for the period of the
most recent four consecutive fiscal quarters for which internal
financial statements are available ending prior to the date of such
determination to
(y) Consolidated Interest Expense for such four fiscal
quarters;
provided, however, that
(1) if the Company or any Restricted Subsidiary has Incurred
any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or
both, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness
as if such Indebtedness had been Incurred on the first day of such
period,
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on
the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense
for such period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period and as if the
Company or such Restricted Subsidiary has not earned the interest income
actually earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise discharge
such Indebtedness,
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition, EBITDA for
such period shall be reduced by an amount equal to EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to EBITDA
(if negative), directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable
to any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection with
such Asset Disposition for such period (or, if the Capital Stock of any
Restricted Subsidiary is sold, the Consolidated Interest Expense for
such period directly attributable to the Indebtedness of such Restricted
Subsidiary to the extent the
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Company and its continuing Restricted Subsidiaries are no longer liable
for such Indebtedness after such sale),
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction
requiring a calculation to be made hereunder, which constitutes all or
substantially all of an operating unit of a business, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition occurred on the first
day of such period and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition, any Investment or
acquisition of assets that would have required an adjustment pursuant to
clause (3) or (4) above if made by the Company or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving pro forma effect
thereto as if such Asset Disposition, Investment or acquisition occurred
on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting Officer of the Company
(and shall include any applicable Pro Forma Cost Savings). If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the date of determination had been the applicable rate for the entire period
(taking into account any Interest Rate Agreement applicable to such Indebtedness
if such Interest Rate Agreement has a remaining term in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent incurred by the Company or its Restricted Subsidiaries, without
duplication,
(1) interest expense attributable to Capital Lease
Obligations and the interest expense attributable to leases constituting
part of a Sale/Leaseback Transaction,
(2) amortization of debt discount and debt issuance cost,
(3) capitalized interest,
(4) non-cash interest expense,
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(5) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing,
(6) net payments pursuant to Hedging Obligations in respect
of Indebtedness,
(7) Preferred Stock dividends in respect of all Preferred
Stock held by Persons other than the Company or a Restricted Subsidiary
(other than dividends payable solely in Capital Stock (other than
Disqualified Stock) of the issuer of such Preferred Stock),
(8) interest incurred in connection with Investments in
discontinued operations,
(9) interest accruing on any Indebtedness of any other
Person to the extent such Indebtedness is Guaranteed by (or secured by
the assets of) the Company or any Restricted Subsidiary and
(10) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or trust,
and less, to the extent included in such total interest expense, (A) the
amortization during such period of capitalized financing costs associated with
the Transactions, (B) the amortization during such period of other capitalized
financing costs; provided, however, that the aggregate amount of amortization
relating to any such other capitalized financing costs deducted in calculating
Consolidated Interest Expense shall not exceed 3.5% of the aggregate amount of
the financing giving rise to such capitalized financing costs and (C) interest
expense relating to the Notes.
"Consolidated Net Income" means, for any period, the sum of (1)
the net income of the Company and its consolidated Subsidiaries and (2) to the
extent deducted in calculating net income of the Company and its consolidated
Subsidiaries, (A) any non-recurring fees, expenses or charges related to the
Transactions, (B) any non-recurring charges related to one-time severance or
lease termination costs incurred in connection with the Transactions and (C) for
all purposes other than the making of a Restricted Payment by the Company (other
than an Investment), interest expense relating to the Notes; provided, however,
that there shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such Person
for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed
by such Person during such period to the Company or
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16
a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid
to a Restricted Subsidiary, to the limitations contained in
clause (3) below) and
(B) the Company's equity in a net loss of any such
Person to the extent accounted for pursuant to the equity method
of accounting for such period shall be included in determining
such Consolidated Net Income;
(2) any net income (or loss) of any Person acquired by the
Company or a Subsidiary in a pooling of interests transaction for any
period prior to the date of such acquisition;
(3) any net income of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Company
other than, for all purposes except the making of a Restricted Payment
(other than an Investment) by the Company, restrictions imposed by the
terms of the Credit Agreement and the Senior Subordinated Notes, in each
case, as in effect on the Issue Date or pursuant to Refinancing
Indebtedness Incurred to refinance the Credit Agreement or Senior
Subordinated Notes; provided, however, that that the encumbrances and
restrictions with respect to such Restricted Subsidiary contained in any
such refinancing agreement or amendment are no less favorable to the
noteholders than encumbrances and restrictions with respect to the
payment of dividends or the making of distributions to the Company
contained in such predecessor agreements; and except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a
dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause) and
(B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(4) any gain (or loss) realized upon the sale or other
disposition of any assets of the Company, its consolidated Subsidiaries
or any other Person (including pursuant to any sale-and-leaseback
arrangement) which is not sold or otherwise disposed of in the ordinary
course of business and any gain (or loss) realized upon the sale or
other disposition of any Capital Stock of any Person;
(5) extraordinary gains or losses;
(6) the cumulative effect of a change in accounting
principles;
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17
(7) any income or losses attributable to discontinued
operations (including operations disposed of during such periods whether
or not such operations were classified as discontinued);
(8) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;
and
(9) if the Successor Company is not the Company, the
aggregate net income (or loss) of such Successor Company prior to the
consolidation, merger or transfer resulting in such Successor Company.
Notwithstanding the foregoing, for the purpose of Section 4.04 only, there shall
be excluded from Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of Investments or
return of capital to the Company or a Restricted Subsidiary to the extent such
repurchases, repayments, redemptions, proceeds or returns increase the amount of
Restricted Payments permitted under such Section pursuant to Section
4.04(a)(3)(D).
"Credit Agreement" means the Credit Agreement to be entered into
among XX Xxxxxxx, the Company, as guarantor, the lenders referred to therein,
Credit Suisse First Boston, as Administrative Agent, Sole Lead Arranger and Sole
Book Manager, and the Syndication Agent and Documentation Agent named therein,
together with the related documents thereto (including the term loans and
revolving loans thereunder, any guarantees and security documents), as amended,
extended, renewed, restated, supplemented or otherwise modified (in whole or in
part, and without limitation as to amount, terms, conditions, covenants and
other provisions, including any amendment or modification that increases the
amount of Indebtedness available to be borrowed thereunder) from time to time,
and any agreement (and related document) governing Indebtedness incurred to
Refinance, in whole or in part, the borrowings and commitments then outstanding
or permitted to be outstanding under such Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise;
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18
(2) is convertible or exchangeable at the option of the
holder for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part,
in each case on or prior to the first anniversary of the Stated Maturity of the
Securities; provided, however, that if such Capital Stock is issued to any
employee or to any plan for the benefit of employees of the Company or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall not
constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy obligations as a result of such
employee's death or disability; and provided further, however, that any Capital
Stock that would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to purchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the first anniversary of the Stated Maturity of the
Securities shall not constitute Disqualified Stock if (1) the "asset sale" or
"change of control" provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the terms applicable to the
Securities in Sections 4.06 and 4.09 of this Indenture and (2) any such
requirement only becomes operative after compliance with such terms applicable
to the Securities, including the purchase of any Securities tendered pursuant
thereto.
The amount of any Disqualified Stock that does not have a fixed
redemption, repayment or repurchase price will be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Indenture; provided,
however, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
"DTC" means the Depository Trust Company.
"EBITDA" for any period means the sum of Consolidated Net
Income, plus the following to the extent deducted in calculating such
Consolidated Net Income:
(1) all income tax expense of the Company and its
consolidated Restricted Subsidiaries,
(2) Consolidated Interest Expense,
(3) any non-recurring fees, expenses or charges related to
any Equity Offering, Permitted Investment, acquisition or Incurrence of
Indebtedness permitted to be Incurred by this Indenture (in each case,
whether or not successful), including any such fees, expenses or charges
related to the Transactions, in each case not exceeding $5.0 million in
the aggregate for all such non-recurring fees, expenses and charges
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attributable to the same transaction or event (or group of related
transactions or events),
(4) depreciation and amortization expense of the Company and
its consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid operating activity item that was paid in cash
in a prior period),
(5) all other non-cash losses, expenses and charges of the
Company and its consolidated Restricted Subsidiaries (excluding any such
non-cash loss, expense or charge to the extent that it represents an
accrual of or reserve for cash expenditures in any future period), and
(6) any non-recurring charges that are incurred and
associated with the restructuring of the operations of the Company and
its consolidated Subsidiaries announced prior to the Issue Date and
implemented within 90 days after the Issue Date,
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and non-cash charges of, a Restricted Subsidiary shall be added to Consolidated
Net Income to compute EBITDA only to the extent (and in the same proportion)
that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Equity Offering" means any primary offering of Capital Stock of
the Company or XX Xxxxxxx (other than Disqualified Stock)to Persons who are not
Affiliates of the Company other than (1) public offerings with respect to the
Company's Common Stock registered on Form S-8 and (2) issuances upon exercise of
options by employees of the Company or any of its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means the debt securities of the Company
issued pursuant to this Indenture in exchange for, and in an aggregate principal
amount at maturity equal to, the Initial Securities, in compliance with the
terms of the Registration Rights Agreement.
"Exempt Subsidiary" means any Restricted Subsidiary that shall
have had aggregate EBITDA of less than $250,000 for the period of the most
recent four consecutive fiscal quarters for which internal financial statements
are available ending prior to the date of the issuance or sale of its Capital
Stock giving rise to such determination; provided, however, that such sale or
issuance is pursuant to a plan or program for the sale or issuance of Capital
Stock a majority of which is sold to local management or to local strategic
investors.
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20
"Facilities" means the Term Loan Facilities and the Revolving
Credit Facilities.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary
not incorporated or organized under the laws of the United States of America,
any State thereof or the District of Columbia.
"Xxxxxxx Xxxxxx" means collectively, (1) FS Equity Partners III,
L.P., (2) FS Equity Partners International L.P., (3) any investment fund that is
affiliated with Xxxxxxx Xxxxxx & Co. Incorporated and (4) Xxxxxxx Xxxxxx & Co.
Incorporated and any successor entity thereof controlled by the principals of
Xxxxxxx Xxxxxx & Co. Incorporated or any entity controlled by, or under common
control with, Xxxxxxx Xxxxxx & Co. Incorporated.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in
(1) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants,
(2) statements and pronouncements of the Financial
Accounting Standards Board,
(3) such other statements by such other entity as approved
by a significant segment of the accounting profession and
(4) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section
13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting
staff of the SEC. Except as otherwise provided herein, all ratios and
computations based on GAAP contained in this Indenture shall be computed
in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or otherwise)
or
(2) entered into for the purpose of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part);
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21
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement or
similar agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Person at the time it becomes a Restricted Subsidiary. The
term "Incurrence" when used as a noun shall have a correlative meaning. Solely
for purposes of determining compliance with Section 4.03, (1) amortization of
debt discount or the accretion of principal with respect to a noninterest
bearing or other discount security and (2) the payment of regularly scheduled
interest in the form of additional Indebtedness of the same instrument or the
payment of regularly scheduled dividends on Capital Stock in the form of
additional Capital Stock of the same class and with the same terms will not be
deemed to be the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable, including, in each case, any
premium on such indebtedness to the extent such premium has become due
and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into
by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary
course of business);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in clauses
(1) through (3) above) entered into in the ordinary course of business
of such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later
than the twentieth Business Day following payment on the letter of
credit);
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(5) the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of any
Disqualified Stock of such Person or, with respect to any Preferred
Stock of any Subsidiary of such Person, the principal amount of such
Preferred Stock to be determined in accordance with Section 1.04(7) (but
excluding, in each case, any accrued dividends);
(6) all obligations of the type referred to in clauses (1)
through (5) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including by
means of any Guarantee;
(7) all obligations of the type referred to in clauses (1)
through (6) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets and the amount of the obligation so
secured; and
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
Notwithstanding the foregoing, in connection with the purchase by the Company or
any Restricted Subsidiary of any business, the term "Indebtedness" will exclude
post-closing payment adjustments to which the seller may become entitled to the
extent such payment is determined by a final closing balance sheet or such
payment depends on the performance of such business after the closing; provided,
however, that, at the time of closing, the amount of any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and
determined, the amount is paid within 30 days thereafter. Indebtedness of any
Person shall include all Indebtedness of any partnership or other entity in
which such Person is a general partner or other equity holder with unlimited
liability other than Indebtedness which by its terms is non-recourse to such
Person and its assets.
The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date provided, however, that the principal amount of any noninterest bearing or
other discount security at any date will be the principal amount thereof that
would be shown on a balance sheet of such Person dated such date prepared in
accordance with GAAP.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Independent Qualified Party" means an investment banking firm,
accounting firm or appraisal firm of national standing; provided, however, that
such firm is not an Affiliate of the Company.
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23
"Initial Securities" means (1) $65.0 million aggregate principal
amount of 16% Senior Notes Due July 20, 2011 issued on the Issue Date and (2)
Additional Securities, if any, issued in a transaction exempt from the
registration requirements of the Securities Act.
"Interest Rate Agreement" means in respect of a Person any
interest rate swap agreement, interest rate cap agreement or other financial
agreement or arrangement designed to protect such Person against fluctuations in
interest rates.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. Except as otherwise provided for
herein, the amount of an Investment shall be its fair market value at the time
the Investment is made and without giving effect to subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary", the
definition of "Restricted Payment" and Section 4.04,
(1) "Investment" shall include the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market
value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary equal to an amount (if
positive) equal to (x) the Company's "Investment" in such Subsidiary at
the time of such redesignation less (y) the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market
value of the net assets of such Subsidiary at the time of such
redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of
Directors.
"Investment Grade Rating" means a rating equal to or higher than
Baa3 (or the equivalent) and BBB- (or the equivalent) by Xxxxx'x Investors
Service, Inc. (or any successor to the rating agency business thereof) and
Standard & Poor's Ratings Group (or any successor to the rating agency business
thereof), respectively.
"Issue Date" means the date on which the Securities are
initially issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
-16-
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"Melody" means X.X. Xxxxxx & Company, a Texas corporation.
"Melody Loan Arbitrage Facility" means a credit facility
provided to Melody by any depository bank in which Melody deposits payments
relating to mortgage loans for which Melody is servicer prior to distribution of
such payments to or for the benefit of the holders of such loans, so long as (1)
Melody applies all proceeds of loans made under such credit facility to purchase
Temporary Cash Investments and (2) all such Temporary Cash Investments purchased
by Melody with the proceeds of loans thereunder (and proceeds thereof and
distributions thereon) are pledged to the depository bank providing such credit
facility, and such bank has a first priority perfected security interest
therein, to secure loans made under such credit facility.
"Melody Mortgage Warehousing Facility" means the credit facility
provided by Residential Funding Corporation ("RFC") or any substantially similar
facility extended to any Mortgage Banking Subsidiary in connection with any
Mortgage Banking Activities, pursuant to which RFC or another lender makes loans
to Melody, the proceeds of which loans are applied by Melody (or any Mortgage
Banking Subsidiary) to fund commercial mortgage loans originated and owned by
Melody (or any Mortgage Banking Subsidiary) subject to an unconditional,
irrevocable (subject to customary exceptions) commitment to purchase such
mortgage loans by the Federal Home Loan Mortgage Corporation, the Federal
National Mortgage Association or any other quasi-federal governmental entity so
long as loans made by RFC or such other lender to Melody (or any Mortgage
Banking Subsidiary) thereunder are secured by a pledge of commercial mortgage
loans made by Melody (or any Mortgage Banking Subsidiary) with the proceeds of
such loans and RFC or such other lender has a perfected first priority security
interest therein, to secure loans made under such credit facility.
"Melody Permitted Indebtedness" means Indebtedness of Melody
under the Melody Loan Arbitrage Facility, the Melody Mortgage Warehousing
Facility and the Melody Working Capital Facility and Indebtedness of any
Mortgage Banking Subsidiary under the Melody Mortgage Warehousing Facility that
is, in all cases, non-recourse to the Company or any of its other Subsidiaries.
"Melody Working Capital Facility" means a credit facility
provided by a financial institution to Melody, so long as (1) the proceeds of
loans thereunder are applied only to provide working capital to Melody, (2)
loans under such credit facility are unsecured, and (3) the aggregate principal
amount of loans outstanding under such credit facility at no time exceeds $1.0
million.
"Merger" means the merger of Xxxx XX Corp. with and into XX
Xxxxxxx pursuant to the Merger Agreement.
"Merger Agreement" means the amended and restated agreement and
plan of merger dated as of May 31, 2001, between XX Xxxxxxx, the Company and
Xxxx XX Corp., as such agreement may be further amended so long as such
amendments are not adverse to Holders, and all other documents entered into or
delivered in connection with the Merger Agreement.
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"Mortgage Banking Activities" means the origination by a
Mortgage Banking Subsidiary of mortgage loans in respect of commercial and
multi-family residential real property, and the sale or assignment of such
mortgage loans and the related mortgages to another person (other than the
Company or any of its Subsidiaries) within sixty days after the origination
thereof; provided, however, that in each case prior to origination of any
mortgage loan, the Company, XX Xxxxxxx or a Mortgage Banking Subsidiary, as the
case may be, shall have entered into a legally binding and enforceable purchase
and sale agreement with respect to such mortgage loan with a person that
purchases such loans in the ordinary course of business.
"Mortgage Banking Subsidiary" means Melody and its subsidiaries
that are engaged in Mortgage Banking Activities.
"Net Available Cash" from an Asset Disposition means cash
payments received therefrom (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise and proceeds from the sale or other disposition of any securities
received as consideration, but only as and when received, but excluding any
other consideration received in the form of assumption by the acquiring Person
of Indebtedness or other obligations relating to such properties or assets or
received in any other noncash form), in each case net of:
(1) all legal, accounting, investment banking and brokerage
fees, title and recording tax expenses, commissions and other fees and
expenses incurred, and all Federal, state, provincial, foreign and local
taxes required to be accrued as a liability under GAAP, as a consequence
of such Asset Disposition,
(2) all payments made on any Indebtedness which is secured
by any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or by applicable
law, be repaid out of the proceeds from such Asset Disposition,
(3) all distributions and other payments required to be made
to minority interest holders in Restricted Subsidiaries as a result of
such Asset Disposition, and
(4) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the property or other assets disposed in such Asset
Disposition and retained by the Company or any Restricted Subsidiary
after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
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"Obligations" means with respect to any Indebtedness all
obligations for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"Offering Circular" means the Confidential Offering Circular
dated June 29, 2001 relating to the Securities.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chairman of the Americas, any Vice President, the
Chief Financial Officer, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company or the Trustee.
"Permitted Co-investment" means any Investment by any Restricted
Subsidiary which is formed solely to acquire up to 5% of the Capital Stock of
any Person (a "Co-investment Entity") managed by such Restricted Subsidiary
whose principal purpose is to invest, directly or indirectly, in commercial real
estate; provided, however, that such Restricted Subsidiary is acting in such
capacity pursuant to an arrangement substantially similar to arrangements
entered into by Restricted Subsidiaries involved in such activities prior to the
Issue Date.
"Permitted Holders" means (1) RCBA and Xxxxxxx Xxxxxx, (2) any
member of senior management of the Company on the Issue Date and (3) DLJ
Investment Funding, Inc. and its affiliates.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in
(1) the Company, a Restricted Subsidiary or a Person that
will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that (A) the primary business of such
Restricted Subsidiary is a Related Business and (B) such Restricted
Subsidiary is not restricted from making dividends or similar
distributions by contract, operation of law or otherwise;
(2) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary
business is a Related Business;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business and
payable or dischargeable in
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accordance with customary trade terms; provided, however, that such
trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances;
(5) payroll, travel, moving and similar advances to cover
matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the
ordinary course of business;
(6) loans or advances to employees or independent
contractors made in the ordinary course of business consistent with past
practices of the Company or such Restricted Subsidiary;
(7) loans or advances to clients and vendors made in the
ordinary course of business consistent with past practices of the
Company or such Restricted Subsidiary in an aggregate amount outstanding
at any time not exceeding $1.5 million;
(8) stock, obligations or securities received in settlement
of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments;
(9) any Person to the extent such Investment represents the
non-cash portion of the consideration received for an Asset Disposition
as permitted pursuant to Section 4.06;
(10) any Person where such Investment was acquired by the
Company or any of its Restricted Subsidiaries (a) in exchange for any
other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (b) as a result of a foreclosure by
the Company or any of its Restricted Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any
secured Investment in default;
(11) Hedging Obligations entered into in the ordinary course
of the Company's or any Restricted Subsidiary's business and not for the
purpose of speculation;
(12) any Person to the extent such Investment replaces or
refinances an Investment in such Person existing on the Issue Date in an
amount not exceeding the amount of the Investment being replaced or
refinanced; provided, however, the new Investment is on terms and
conditions no less favorable than the Investment being renewed or
replaced;
(13) Investments in insurance on the life of any participant
in any deferred compensation plan of the Company or XX Xxxxxxx made in
the ordinary course of business consistent with past practices of the
Company or XX Xxxxxxx;
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(14) Permitted Co-investments in an aggregate amount not
exceeding (a) for the period from the day after the Issue Date to
December 31, 2001, the excess of $20.0 million over the aggregate amount
of all such Investments made in the period from January 1, 2001 to the
Issue Date, and (b) $20.0 million in each calendar year thereafter;
provided, however, that such Investments made in Co-investment Entities
investing in countries that are not members of the Organization for
Economic Co-operation and Development shall not exceed $5.0 million in
any calendar year; provided further, however, that (x) at the time of
such Investment, no Default shall have occurred and be continuing (or
result therefrom)and (y) immediately after giving pro forma effect to
such Investment, the Company would be able to Incur an additional $1.00
of Indebtedness pursuant to Section 4.03(a); and
(15) so long as no Default shall have occurred and be
continuing (or result therefrom), any Person in an aggregate amount
which, when added together with the amount of all the Investments made
pursuant to this clause (15) which at such time have not been repaid
through repayments of loans or advances or other transfers of assets,
does not exceed $15.0 million (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value).
"Permitted Liens" means the following types of Liens:
(1) any interest or title of a lessor under any Capital
Lease Obligation; provided, however, that such Liens do not extend to
any property or assets which is not leased property subject to such
Capital Lease Obligation;
(2) Liens securing Capital Lease Obligations and Purchase
Money Indebtedness which may be incurred under Section 4.03(b)(14);
provided, however, that in the case of Purchase Money Indebtedness (A)
the Indebtedness shall not exceed the cost of such property or assets
being acquired or constructed and shall not be secured by any property
or assets of the Company or any Restricted Subsidiary of the Company
other than the property and assets being acquired or constructed and (B)
the Lien securing such Indebtedness shall be created within 180 days of
such acquisition or construction;
(3) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect
of bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods;
(4) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(5) Liens securing Hedging Obligations which Hedging
Obligations relate to Indebtedness that is otherwise permitted under
this Indenture;
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(6) Liens securing Acquired Indebtedness incurred in
accordance with Section 4.03; provided, however, that (A) such Liens
secured such Acquired Indebtedness at the time of and prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and were not granted in connection with, or in
anticipation of, the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company and (B) such Liens do
not extend to or cover any property or assets of the Company or of any
of its Restricted Subsidiaries other than the property or assets that
secured the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Company or a Restricted Subsidiary
of the Company and are no more favorable to the lienholders than those
securing the Acquired Indebtedness prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company;
(7) Liens on commercial mortgage loans originated and owned
by Melody or any Mortgage Banking Subsidiary pursuant to the Melody
Mortgage Warehousing Facility;
(8) Liens on investments made by Melody in connection with
the Melody Loan Arbitrage Facility to secure Indebtedness under the
Melody Loan Arbitrage Facility, if such investments were acquired by
Melody with the proceeds of such Indebtedness;
(9) Liens for taxes, fees, assessments or other governmental
charges not yet due or which are being contested in good faith by
appropriate proceedings and as to which the Company or its Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP; and
(10) statutory Liens of landlords and carriers',
warehousemen's, mechanics', suppliers', materialmen's, repairmen or
other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
good faith by appropriate proceedings and as to which the Company or its
Subsidiaries shall have set aside on its books such reserves or other
appropriate provision, if any, as may be required pursuant to GAAP.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PIK Interest" means pay-in-kind interest payable on all
outstanding Securities for which Cash Interest is not paid, in the form of the
issuance of Additional Securities.
"Preferred Stock", as applied to the Capital Stock of any
Person, means 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 shares of Capital Stock of any other class of
such Person.
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"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Private Exchange Securities" has the meaning given such term in
the Registration Rights Agreement.
"Pro Forma Cost Savings" means, with respect to any period, the
reduction in costs that were
(1) directly attributable to an asset acquisition and
calculated on a basis that is consistent with Regulation S-X under the
Securities Act in effect and applied as of the Issue Date, or
(2) implemented by the business that was the subject of any
such asset acquisition within six months of the date of the asset
acquisition and that are supportable and quantifiable by the underlying
accounting records of such business,
as if, in the case of each of clause (1) and (2), all such reductions in costs
had been effected as of the beginning of such period.
"Purchase Money Indebtedness" means Indebtedness (including
Capital Lease Obligations) (1) consisting of the deferred purchase price of
property, conditional sale obligations, obligations under any title retention
agreement, other purchase money obligations and obligations in respect of
industrial revenue bonds or similar Indebtedness, in each case where the
maturity of such Indebtedness does not exceed the anticipated useful life of the
asset being financed, and (2) Incurred to finance the acquisition by the Company
or a Restricted Subsidiary of such asset, including additions and improvements;
provided, however, that any Lien arising in connection with any such
Indebtedness shall be limited to the specified asset being financed or, in the
case of real property or fixtures, including additions and improvements, the
real property on which such asset is attached; provided further, however, that
such Indebtedness is Incurred within 180 days after such acquisition of such
assets by the Company or any Restricted Subsidiary.
"Rating Agencies" means Standard and Poor's Ratings Group and
Xxxxx'x Investors Service, Inc. or any successor to the respective rating agency
business thereof.
"RCBA" means (1) RCBA Strategic Partners, L.P., (2) XXXX Capital
Partners, L.P. and its successors and (3) any investment fund that is affiliated
with XXXX Capital Partners, L.P. or its successors.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
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"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Company or any Restricted Subsidiary existing on the
Issue Date or Incurred in compliance with this Indenture, including Indebtedness
that Refinances Refinancing Indebtedness; provided, however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced, and
(3) such Refinancing Indebtedness has an aggregate principal
amount (or if Incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value)
then outstanding or committed (plus fees and expenses, including any
premium and defeasance costs) under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Restricted Subsidiary that Refinances Indebtedness of the
Company or (B) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
"Registration Rights Agreement" means the Notes Registration
Rights Agreement dated July 20, 2001, among the Company and Credit Suisse First
Boston Corporation.
"Related Business" means any business in which the Company or
any of its Restricted Subsidiaries was engaged on the Issue Date and any
business related, ancillary or complementary to any business of the Company or
any of its Restricted Subsidiaries in which the Company or any of its Restricted
Subsidiaries was engaged on the Issue Date.
"Restricted Payment" with respect to any Person means
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its
Capital Stock (other than dividends or distributions payable solely in
its Capital Stock (other than Disqualified Stock) and dividends or
distributions payable solely to the Company or a Restricted Subsidiary,
and other than pro rata dividends or other distributions made by a
Subsidiary that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a
Subsidiary that is an entity other than a corporation)),
(2) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company held by any
Person or of any Capital Stock of a
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Restricted Subsidiary held by any Affiliate of the Company (other than a
Restricted Subsidiary), including the exercise of any option to exchange
any Capital Stock (other than into Capital Stock of the Company that is
not Disqualified Stock),
(3) the purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations of such Person (other than the purchase,
repurchase, or other acquisition of Subordinated Obligations purchased
in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the
date of such purchase, repurchase or other acquisition) or
(4) the making of any Investment (other than a Permitted
Investment) in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company that
is not an Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit facility
contained in the Credit Agreement and any other facility or financing
arrangement that Refinances, in whole or in part, and such revolving credit
facility.
"Sale/Leaseback Transaction" means an arrangement relating to
property owned by the Company or a Restricted Subsidiary on the Issue Date or
thereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities" means the Securities issued under this Indenture.
"Senior Subordinated Notes" means the 11 1/4% Senior
Subordinated Notes due June 15, 2011 of Xxxx XX Corp.
"Significant Subsidiary" means XX Xxxxxxx and 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 SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
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"Subordinated Obligation" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to the Securities
of such Person pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Voting Stock is at the time owned or controlled,
directly or indirectly, by (1) such Person, (2) such Person and one or more
Subsidiaries of such Person or (3) one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United
States of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof,
(2) investments in time deposit accounts, bankers'
acceptances, certificates of deposit and money market deposits maturing
within one year of the date of acquisition thereof issued by a bank or
trust company which is organized under the laws of the United States of
America, any State thereof or any foreign country recognized by the
United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50,000,000 (or
the foreign currency equivalent thereof) and has outstanding debt that
is rated "A" (or such similar equivalent rating) or higher by at least
one nationally recognized statistical rating organization (as defined in
Rule 436 under the Securities Act) or any money-market fund sponsored by
a registered broker-dealer or mutual fund distributor,
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above and clauses (4) and (5) below entered into with a bank meeting the
qualifications described in clause (2) above,
(4) investments in commercial paper, maturing not more than
one year from the date of creation thereof, issued by a corporation
(other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher) according
to Xxxxx'x Investors Service, Inc. or "A-1" (or higher) according to
Standard and Poor's Ratings Group,
(5) investments in securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority
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thereof, and rated at least "A" by Standard & Poor's Ratings Group or
"A" by Xxxxx'x Investors Service, Inc., and
(6) other short-term investments utilized by Foreign
Restricted Subsidiaries in accordance with normal investment practices
for cash management in investments of a type analogous to the foregoing.
"Term Loan Facility" means the term loan facilities contained in
the Credit Agreement and any other facilities or financing arrangements that
Refinances in whole or in part any such term loan facility.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Transactions" shall mean, collectively, the following
transactions to occur on or prior to the Issue Date: (a) the consummation of the
Merger, (b) the execution and delivery of the Credit Agreement and the initial
borrowings thereunder, (c) the closing of the tender offer for and the receipt
of the requisite consents in connection with the consent solicitation in respect
of XX Xxxxxxx'x existing 8-7/8% Senior Subordinated Notes Due 2006, (d) the Cash
Equity Contribution and (e) the payment of all fees and expenses then due and
owing that are required to be paid on or prior to the Issue Date in connection
with the offering of the Securities.
"Trustee" means the party named as such in this Indenture until
a successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial
Code as in effect from time to time.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary of the Company) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided, however, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.04. The
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Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
designation (A) the Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) and (B) no Default shall have occurred and be continuing. Any
such designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Dollar Equivalent" means with respect to any monetary
amount in a currency other than U.S. dollars, at any time for determination
thereof, the amount of U.S. dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the "Exchange Rates" column under the heading "Currency
Trading" on the date two Business Days prior to such determination.
Except as described in Section 4.03, whenever it is necessary to
determine whether the Company has complied with any covenant in this Indenture
or a Default has occurred and an amount is expressed in a currency other than
U.S. dollars, such amount will be treated as the U.S. Dollar Equivalent
determined as of the date such amount is initially determined in such currency.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares and other than
shares of Capital Stock of XX Xxxxxxx issuable upon exercise of employee stock
options outstanding on the Issue Date) is owned by the Company or one or more
Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"............................ 4.07
"Bankruptcy Law"................................... 6.01
"Change of Control Offer".......................... 4.09(b)
"covenant defeasance option"....................... 8.01(b)
"Custodian"........................................ 6.01
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"Event of Default"................................. 6.01
"legal defeasance option".......................... 8.01(b)
"Legal Holiday".................................... 10.08
"Offer"............................................ 4.06(b)
"Offer Amount"..................................... 4.06(c)(2)
"Offer Period"..................................... 4.06(c)(2)
"Paying Agent"..................................... 2.03
"Purchase Date".................................... 4.06(c)(1)
"Registrar"........................................ 2.03
"Successor Company"................................ 5.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor"on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
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(5) words in the singular include the plural and words in
the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater; and
(8) all references to the date the Securities were
originally issued shall refer to the Issue Date.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Exchange Securities, the
Private Exchange Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, which is hereby incorporated in
and expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). Each Security
shall be dated the date of its authentication. The terms of the Securities set
forth in the Appendix and Exhibit A are part of the terms of this Indenture.
SECTION 2.02. Execution and Authentication. One Officer shall
sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for
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payment (the "Paying Agent"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any Wholly Owned Subsidiary incorporated or organized within The
United States of America may act as Paying Agent, Registrar, co-registrar or
transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
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SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each
due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. 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 Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of this Indenture
and Section 8-401(a) of the Uniform Commercial Code are met. When Securities are
presented to the Registrar or a co-registrar with a request to exchange them for
an equal principal amount of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A
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Security does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may be,
and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.10. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities 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, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption
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and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
SECTION 2.13. Issuance of Additional Securities. The Company
shall be entitled, subject, in the case of Additional Securities other than
Additional Securities issued as PIK Interest, to its compliance with Section
4.03, to issue Additional Securities under this Indenture which shall have
identical terms as the Initial Securities issued on the Issue Date, other than
with respect to the date of issuance and, in the case of Additional Securities
other than Additional Securities issued as PIK Interest, issue price. The
Initial Securities issued on the Issue Date, any Additional Securities and all
Exchange Securities or Private Exchange Securities issued in exchange therefor
shall be treated as a single class for all purposes under this Indenture.
With respect to any Additional Securities (other than Additional
Securities issued as PIK Interest), the Company shall set forth in a resolution
of the Board of Directors and an Officers' Certificate, a copy of each which
shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of
such Additional Securities; provided, however, that no Additional
Securities may be issued at a price that would cause such Additional
Securities to have "original issue discount" within the meaning of
Section 1273 of the Code (unless then applicable regulations under the
Code would treat the outstanding Securities and the Additional
Securities as part of the same issue); and
(3) whether such Additional Securities shall be Transfer
Restricted Securities and issued in the form of Initial Securities as
set forth in the Appendix to this Indenture or shall be issued in the
form of Exchange Securities as set forth in Exhibit A.
With respect to any Additional Securities issued as PIK Interest
in accordance with paragraph 1 of the Securities, the Company shall deliver to
the Trustee:
(1) no later than the record date for the relevant interest
payment date, a written notice setting forth the extent to which such
interest payment will be made in the form of PIK Interest; and
(2) no later than one Business Day prior to the relevant
interest payment date, an order to authenticate and deliver such
Additional Securities.
Any Additional Securities issued as PIK Interest shall, after being executed and
authenticated pursuant to Section 2.02, be (i) delivered by the Trustee to the
Securityholders as of the relevant record date at such Securityholders'
registered address if the Securities are then held
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in the form of certificated Securities in accordance with Section 2.4 of the
Rule 144A/IAI Appendix hereto and (ii) be deposited with or on behalf of DTC for
the benefit of the beneficial owners of the Securities as of the relevant record
date, as applicable.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities or is required to
redeem Securities pursuant to paragraph 6 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
If the Company is required to redeem Securities pursuant to
paragraph 6 of the Securities, it may reduce the accreted value of Securities
required to be redeemed to the extent it is permitted a credit by the terms of
the Securities and it notifies the Trustee of the amount of the credit and the
basis for it. If the reduction is based on a credit for redeemed or canceled
Securities that the Company has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with the notice.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
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SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $1,000. Securities and portions of them the Trustee selects shall be
in principal amounts of $1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities (except in the case
of a redemption pursuant to paragraph 6 of the Securities, in which case, the
notice shall be mailed within the time period specified in such paragraph), the
Company shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and after
the redemption date;
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
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At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date). Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder. Once notice of a redemption pursuant to
paragraph 6 of the Securities is mailed, the Company shall be entitled to redeem
the Securities pursuant to such paragraph at the redemption price provided for
therein notwithstanding the occurrence of an Event of Default after the mailing
date of such notice.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
Following the first day that (a) the ratings assigned to the
Securities by both of the Rating Agencies are Investment Grade Ratings and (b)
no Default has occurred and is continuing under this Indenture (and
notwithstanding that the Company may later cease to have an Investment Grade
Rating from either or both Rating Agencies or default under this Indenture), the
Company and its Restricted Subsidiaries shall not be subject to Sections 4.03,
4.04, 4.05, 4.06, 4.07 and 4.08.
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SECTION 4.01. Payment of Securities. The Company shall promptly
pay the principal of and interest on the Securities on the dates and in the
manner provided in the Securities and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money or PIK Interest
sufficient to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money or
PIK Interest to the Securityholders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC and provide the Trustee and
Securityholders within 15 days after it files them with the SEC with such annual
reports and such information, documents and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation
subject to such Sections, such information, documents and other reports to be so
filed with the SEC at the times specified for the filings of such information,
documents and reports under such Sections provided, however, that the Company
shall not be so obligated to file such reports with the SEC if the SEC does not
permit such filing, in which event the Company will make available such
information to the Trustee and Securityholders within 15 days after the time the
Company would be required to file such information with the SEC if it were
subject to Section 13 or 15(d) of the Exchange Act.
In addition, the Company shall furnish to the Holder of the
Securities and to prospective investors, upon the requests of such Holders, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long any Securities are not freely transferable under the
Securities Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company and its
Restricted Subsidiaries shall be entitled to Incur Indebtedness if, on the date
of such Incurrence and after giving effect thereto, no Default has occurred and
is continuing and the Consolidated Coverage Ratio exceeds 2.25 to 1 if such
Indebtedness is Incurred prior to June 1, 2003 or 2.5 to 1 if such Indebtedness
is Incurred thereafter.
(b) (b) Notwithstanding the foregoing paragraph (a), the Company
and the Restricted Subsidiaries shall be entitled to Incur any or all of the
following Indebtedness:
(1) Indebtedness Incurred pursuant to any Revolving Credit
Facility; provided, however, that, immediately after giving effect to
any such Incurrence, the aggregate principal amount of all Indebtedness
Incurred under this clause (1) and then outstanding does not exceed the
greater of (A) $100.0 million less the sum of all
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principal payments with respect to such Indebtedness pursuant to Section
4.06(a)(3)(A) and (B) 80% of the book value of the accounts receivable
of XX Xxxxxxx and its Restricted Subsidiaries;
(2) Indebtedness Incurred pursuant to any Term Loan
Facility; provided, however, that, after giving effect to any such
Incurrence, the aggregate principal amount of all Indebtedness Incurred
under this clause (2) and then outstanding does not exceed $225.0
million less the aggregate sum of all principal payments actually made
from time to time after the Issue Date with respect to such Indebtedness
(other than principal payments made from Refinancings thereof);
(3) Indebtedness owed to and held by the Company or a
Restricted Subsidiary; provided, however, that (A) any subsequent
issuance or transfer of any Capital Stock which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or a
Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon and (B) if the
Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Securities;
(4) the Securities and the Exchange Securities (other than
any Additional Securities (except Additional Securities issued as PIK
Interest));
(5) Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date (after giving effect to the
Transactions) (other than Indebtedness described in clause (1), (2), (3)
or (4) of this Section 4.03(b));
(6) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Subsidiary was
acquired by the Company or any of its Restricted Subsidiaries (other
than Indebtedness Incurred in connection with, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by the Company or any of
its Restricted Subsidiaries); provided, however, that on the date of
such acquisition and after giving effect thereto, the aggregate
principal amount of all Indebtedness Incurred pursuant to this clause
(6) and then outstanding does not exceed $10.0 million;
(7) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to Section 4.03(a) or pursuant to clause (4), (5) or
(6) of this Section 4.03(b) or this clause (7); provided, however, that
to the extent such Refinancing Indebtedness directly or indirectly
Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (6),
such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(8) Hedging Obligations entered into in the ordinary course
of business and not for the purpose of speculation;
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(9) obligations in respect of letters of credit,
performance, bid and surety bonds, completion guarantees, payment
obligations in connection with self-insurance or similar requirements
provided by the Company or any Restricted Subsidiary in the ordinary
course of business;
(10) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
Business Days of its Incurrence;
(11) any Guarantee (including the Subsidiary Guaranties) by
the Company or a Restricted Subsidiary of Indebtedness or other
obligations of the Company or any of its Restricted Subsidiaries so long
as the Incurrence of such Indebtedness by the Company or such Restricted
Subsidiary is permitted under the terms of this Indenture (other than
Indebtedness Incurred pursuant to clause (6) above);
(12) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the acquisition or
disposition of any business, assets or a Subsidiary; provided, however
that (A) such Indebtedness is not reflected on the balance sheet of the
Company or any Restricted Subsidiary (contingent obligations referred to
in a footnote or footnotes to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on
such balance sheet for purposes of this clause (A)) and (B) in the case
of a disposition, the maximum liability in respect of such Indebtedness
shall at no time exceed the gross proceeds including non-cash proceeds
(the fair market value of such non-cash proceeds being determined at the
time received and without giving effect to any subsequent changes in
value) actually received by the Company or such Restricted Subsidiary in
connection with such disposition;
(13) Melody Permitted Indebtedness;
(14) Purchase Money Indebtedness Incurred to finance the
acquisition by the Company or any Restricted Subsidiary of any fixed or
capital assets in the ordinary course of business in an aggregate
principal amount which, when taken together with all other Indebtedness
Incurred pursuant to this clause (14) and then outstanding, does not
exceed $10.0 million;
(15) Indebtedness of Foreign Restricted Subsidiaries in an
aggregate principal amount which, when taken together with all other
Indebtedness of Foreign Restricted Subsidiaries Incurred pursuant to
this clause (15) and then outstanding, does not exceed $15.0 million;
and
(16) Indebtedness of the Company or any Restricted Subsidiary
in an aggregate principal amount which, when taken together with all
other Indebtedness of the Company and the Restricted Subsidiaries
outstanding on the date of such
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Incurrence (other than Indebtedness permitted by clauses (1) through
(15) of this Section 4.03(b) or Section 4.03(a)), does not exceed $30.0
million.
(c) (c) Notwithstanding the foregoing, (i) the Company will not
Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are
used, directly or indirectly, to Refinance any Subordinated Obligations of the
Company unless such Indebtedness shall be subordinated to the Securities to at
least the same extent as such Subordinated Obligations and (ii) no Restricted
Subsidiary will Incur any Indebtedness pursuant to the foregoing paragraph (b)
if the proceeds thereof are used, directly or indirectly, to Refinance
Indebtedness of the Company.
(d) (d) For purposes of determining compliance with this Section
4.03, (1) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described herein, the Company, in its sole
discretion, shall classify such item of Indebtedness at the time of Incurrence
and only be required to include the amount and type of such Indebtedness in one
of the above clauses (provided that any Indebtedness originally classified as
Incurred pursuant to clause (b)(16) above may later be reclassified as having
been Incurred pursuant to paragraph (a) above to the extent that such
reclassified Indebtedness could be Incurred pursuant to paragraph (a) above at
the time of such reclassification) and (2) the Company shall be entitled to
divide and classify an item of Indebtedness in more than one of the types of
Indebtedness described herein.
For purposes of determining compliance with any U.S. dollar
restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is
denominated in a different currency, the amount of such Indebtedness will be the
U.S. Dollar Equivalent determined on the date of the Incurrence of such
Indebtedness, provided, however, that if any such Indebtedness denominated in a
different currency is subject to a Currency Agreement with respect to U.S.
dollars covering all principal, premium, if any, and interest payable on such
Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be
as provided in such Currency Agreement. The principal amount of any Refinancing
Indebtedness Incurred in the same currency as the Indebtedness being Refinanced
will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the
extent that (1) such U.S. Dollar Equivalent was determined based on a Currency
Agreement, in which case the Refinancing Indebtedness will be determined in
accordance with the preceding sentence, and (2) the principal amount of the
Refinancing Indebtedness exceeds the principal amount of the Indebtedness being
Refinanced, in which case the U.S. Dollar Equivalent of such excess will be
determined on the date such Refinancing Indebtedness is Incurred.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make a Restricted Payment if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(i) (1) a Default shall have occurred and be
continuing (or would result therefrom);
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(ii) (2) the Company is not entitled to Incur an
additional $1.00 of Indebtedness under Section 4.03(a);
or
(iii) (3) the aggregate amount of such Restricted
Payment and all other Restricted Payments since the
Issue Date would exceed the sum of (without
duplication):
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period) from the
Issue Date to the end of the most recent fiscal quarter ended
for which internal financial statements are available prior to
the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit); plus
(B) 100% of the aggregate Net Cash Proceeds received
by the Company from the issuance or sale of its Capital Stock
(other than Disqualified Stock) subsequent to the Issue Date
(other than an issuance or sale to a Subsidiary of the Company
and other than an issuance or sale to an employee stock
ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees) and 100%
of any cash capital contribution received by the Company from
its shareholders subsequent to the Issue Date; plus
(C) the amount by which Indebtedness of the Company
is reduced on the Company's or XX Xxxxxxx'x balance sheet upon
the conversion or exchange (other than by a Subsidiary of the
Company) subsequent to the Issue Date of any Indebtedness of the
Company or XX Xxxxxxx convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the Company or XX
Xxxxxxx (less the amount of any cash, or the fair value of any
other property, distributed by the Company or XX Xxxxxxx upon
such conversion or exchange); plus
(D) an amount equal to the sum of (x) the net
reduction in the Investments (other than Permitted Investments)
made by the Company or any Restricted Subsidiary in any Person
resulting from repurchases, repayments or redemptions of such
Investments by such Person, proceeds realized on the sale of
such Investment and proceeds representing the return of capital
(excluding dividends and distributions), in each case received
by the Company or any Restricted Subsidiary and (y) to the
extent such Person is an Unrestricted Subsidiary, the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted Subsidiary
is designated a Restricted Subsidiary; provided, however, that
the foregoing sum shall not exceed, in the case of any such
Person or Unrestricted Subsidiary, the amount of Investments
(excluding Permitted Investments) previously made (and treated
as a Restricted Payment) by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary.
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(c) (b) The provisions of Section 4.04(a) shall not prohibit:
(i) (1) any Restricted Payment made out of the
Net Cash Proceeds of the substantially concurrent sale
of, or made by exchange for, Capital Stock of the
Company (other than Disqualified Stock and other than
Capital Stock issued or sold to a Subsidiary of the
Company or an employee stock ownership plan or to a
trust established by the Company or any of its
Subsidiaries for the benefit of their employees) or a
substantially concurrent cash capital contribution
received by the Company from its shareholders; provided,
however, that (A) such Restricted Payment shall be
excluded in the calculation of the amount of Restricted
Payments and (B) the Net Cash Proceeds from such sale or
such cash capital contribution (to the extent so used
for such Restricted Payment) shall be excluded from the
calculation of amounts under Section 4.04(a)(3)(B);
(ii) (2) any purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value
of Subordinated Obligations of the Company or a
Restricted Subsidiary made by exchange for, or out of
the proceeds of the substantially concurrent sale of,
Indebtedness which is permitted to be Incurred pursuant
to Section 4.03; provided, however, that such purchase,
repurchase, redemption, defeasance or other acquisition
or retirement for value shall be excluded in the
calculation of the amount of Restricted Payments;
(iii) (3) dividends paid within 60 days after the
date of declaration thereof if at such date of
declaration such dividend would have complied with this
Section 4.04; provided, however, that such dividend
shall be included in the calculation of the amount of
Restricted Payments;
(iv) (4) repurchases of Capital Stock of the
Company required under XX Xxxxxxx'x 401(k) plan as it
existed as of the Issue Date; provided, however, that
such repurchases shall be excluded from the calculation
of the amount of Restricted Payments;
(v) (5) so long as, in the case of clause (I)
below, no Default has occurred and is continuing, the
repurchase or other acquisition of shares of Capital
Stock of the Company or any of the Company's
Subsidiaries from employees (including substantially
full-time independent contractors), former employees,
directors, former directors or consultants of the
Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees,
directors, former directors or consultants): (I)
pursuant to the terms of the agreements (including
employment agreements)or plans (or amendments
thereto)approved by the Board of Directors under which
such
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individuals purchase or sell or are granted the option
to purchase or sell, shares of such Capital Stock;
provided, however, that the aggregate amount of such
repurchases and other acquisitions shall not exceed the
sum of (A) $5.0 million, (B) the Net Cash Proceeds from
the sale of Capital Stock to members of management,
consultants or directors of the Company and its
Subsidiaries that occurs after the Issue Date (to the
extent the Net Cash Proceeds from the sale of such
Capital Stock have not otherwise been applied to the
payment of Restricted Payments by virtue of clause
(3)(B) of paragraph (a) above) and (C) the cash proceeds
of any "key man" life insurance policies that are used
to make such repurchases or (II) in connection with the
cancellation of Indebtedness owed to the Company or any
of its Restricted Subsidiaries, the proceeds of such
Indebtedness was used to purchase shares of Capital
Stock of the Company; provided further, however, that
(x) such repurchases and other acquisitions shall be
excluded in the calculation of the amount of Restricted
Payments and (y) the Net Cash Proceeds from such sale
shall be excluded from the calculation of amounts under
clause (3)(B) of paragraph (a) above;
(vi) (6) Investments made by Melody in connection
with the Melody Loan Arbitrage Facility or the Melody
Mortgage Warehousing Facility; provided, however, that
such Investments shall be excluded in the calculation of
the amount of Restricted Payments;
(vii) (7) payments required pursuant to the terms
of the Merger Agreement to consummate the Merger;
provided, however, that such payments shall be excluded
in the calculation of the amount of Restricted Payments;
(viii) (8) Restricted Payments in an aggregate
amount which, when taken together with all Restricted
Payments made pursuant to this clause (8) which have not
been repaid, does not exceed $20.0 million; provided,
however, that (A) at the time of such Restricted
Payments, no Default shall have occurred and be
continuing (or result therefrom) and (B) such Restricted
Payments shall be excluded in the calculation of the
amount of Restricted Payments.
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SECTION 4.05. Limitation on Restrictions on Distributions
from Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any
Indebtedness owed to the Company, (b) make any loans or advances to the Company
or (c) transfer any of its property or assets to the Company, except:
(i) (1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to an
agreement of XX Xxxxxxx or any of its Subsidiaries in effect at
or entered into on the Issue Date;
(B) any encumbrance or restriction contained in the terms
of any Indebtedness Incurred pursuant to Section 4.03(b)(15) or
any agreement pursuant to which such Indebtedness was issued if
(x) either (i) the encumbrance or restriction applies only in the
event of and during the continuance of a payment default or a
default with respect to a financial covenant contained in such
Indebtedness or agreement or (ii) the Company determines at the
time any such Indebtedness is Incurred (and at the time of any
modification of the terms of any such encumbrance or restriction)
that any such encumbrance or restriction will not materially
affect the Company's ability to make principal or interest
payments on the Securities and (y) the encumbrance or restriction
is not materially more disadvantageous to the Holders than is
customary in comparable financings or agreements (as determined
by the Board of Directors in good faith);
(C) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary on or prior
to the date on which such Restricted Subsidiary was acquired by
the Company or any of its Restricted Subsidiaries (other than
Indebtedness Incurred as consideration in, or to provide all or
any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company or any of its
Restricted Subsidiaries) and outstanding on such date;
(D) any encumbrance or restriction pursuant to an
agreement effecting a Refinancing of Indebtedness Incurred
pursuant to an agreement referred to in Section 4.05(1) (A), (B)
or (C) or this clause (D) or contained in any amendment to an
agreement referred to in Section 4.05(1)(A), (B) or (C) or this
clause (D); provided, however, that the encumbrances and
restrictions with respect to such Restricted Subsidiary contained
in any such refinancing agreement or amendment are no less
favorable to the Securityholders than encumbrances and
restrictions with respect to such Restricted Subsidiary contained
in such predecessor agreements; and
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(E) any encumbrance or restriction pursuant to
applicable law; and
(ii) (2) with respect to clause (c) only,
(A) any such encumbrance or restriction consisting of
customary non-assignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of
the lease or the property leased thereunder;
(B) restrictions contained in security agreements or
mortgages securing Indebtedness of a Restricted Subsidiary to the
extent such restrictions restrict the transfer of the property
subject to such security agreements or mortgages;
(C) restrictions on the transfer of assets subject to any
Lien permitted under this Indenture imposed by the holder of such
Lien; and
(D) any restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement entered into for the
sale or disposition of all or substantially all the Capital Stock
or assets of such Restricted Subsidiary pending the closing of
such sale or disposition.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Disposition unless: (1) the
Company or such Restricted Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the fair market value (including as to the
value of all non-cash consideration), as determined in good faith by the Board
of Directors, of the shares and assets subject to such Asset Disposition; (2) at
least 80% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or cash equivalents; and (3) an
amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company (or such Restricted Subsidiary, as the case may be) (A)
first, to the extent the Company elects (or is required by the terms of any
Indebtedness), to prepay, repay, redeem or purchase Indebtedness (other than any
Disqualified Stock) of XX Xxxxxxx or any Wholly Owned Subsidiary (in each case
other than Indebtedness owed to the Company or an Affiliate of the Company)
within fifteen months from the later of the date of such Asset Disposition or
the receipt of such Net Available Cash; (B) second, to the extent of the balance
of such Net Available Cash after application in accordance with clause (A), to
the extent the Company elects, to acquire Additional Assets within one year from
the later of the date of such Asset Disposition or the receipt of such Net
Available Cash; and (C) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A) and (B), to make
an Offer to the holders of the Securities (and to holders of other
unsubordinated Indebtedness of the Company designated by the Company) to
purchase Securities (and such other unsubordinated Indebtedness of the Company)
pursuant to and subject to the conditions of Section 4.06(b); provided, however,
that in connection with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (A) or (C) above, the Company or such
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Restricted Subsidiary shall permanently retire such Indebtedness and shall cause
the related loan commitment (if any) to be permanently reduced in an amount
equal to the principal amount so prepaid, repaid or purchased. Notwithstanding
the foregoing provisions of this Section 4.06, the Company and the Restricted
Subsidiaries shall not be required to apply any Net Available Cash in accordance
with this Section 4.06(a) except to the extent that the aggregate Net Available
Cash from all Asset Dispositions which is not applied in accordance with this
Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash
pursuant to this Section 4.06(a), such Net Available Cash shall be invested in
Temporary Cash Investments or applied to temporarily reduce revolving credit
indebtedness.
For the purposes of this Section 4.06(a), the following are
deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the
Company or any Restricted Subsidiary and the release of the Company or such
Restricted Subsidiary from all liability on such Indebtedness in connection with
such Asset Disposition and (2) securities received by the Company or any
Restricted Subsidiary from the transferee that are promptly converted by the
Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the
purchase of Securities (and other unsubordinated Indebtedness of the Company)
pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities
tendered pursuant to an offer by the Company for the Securities (and such other
unsubordinated Indebtedness of the Company) (the "Offer") at a purchase price of
100% of their principal amount (or, in the event such other unsubordinated
Indebtedness of the Company was issued with significant original issue discount,
100% of the accreted value thereof) without premium, plus accrued but unpaid
interest (or, in respect of such other unsubordinated Indebtedness, such lesser
price, if any, as may be provided for by the terms of such unsubordinated
Indebtedness of the Company) in accordance with the procedures (including
prorating in the event of over-subscription) set forth in Section 4.06(c). If
the aggregate purchase price of Securities (and any other unsubordinated
Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net
Available Cash allotted to their purchase, the Company shall select the
Securities and other unsubordinated Indebtedness to be purchased on a pro rata
basis but in round denominations. The Company shall not be required to make an
Offer to purchase Securities (and other unsubordinated Indebtedness of the
Company) pursuant to this Section 4.06 if the Net Available Cash available
therefor is less than $10.0 million (which lesser amount shall be carried
forward for purposes of determining whether such an Offer is required with
respect to the Net Available Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 10 days after the
Company becomes obligated to make an Offer, the Company shall deliver to the
Trustee and send, by first-class mail to each Holder, a written notice stating
that the Holder may elect to have his Securities purchased by the Company either
in whole or in part (subject to prorating as described in Section 4.06(b) in the
event the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice
(the "Purchase Date") and shall contain such information concerning the business
of the Company which the Company in good faith believes will enable such Holders
to make an informed
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decision (which at a minimum will include (A) the most recently filed Annual
Report on Form 10-K (including audited consolidated financial statements) of the
Company, the most recent subsequently filed Quarterly Report on Form 10-Q and
any Current Report on Form 8-K of the Company filed subsequent to such Quarterly
Report, other than Current Reports describing Asset Dispositions otherwise
described in the offering materials (or corresponding successor reports), (B) a
description of material developments in the Company's business subsequent to the
date of the latest of such Reports, and (C) if material, appropriate pro forma
financial information) and all instructions and materials necessary to tender
Securities pursuant to the Offer, together with the information contained in
clause (3).
(2) Not later than the date upon which written notice of an Offer
is delivered to the Trustee as provided below, the Company shall deliver to the
Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer
Amount"), including information as to any other unsubordinated Indebtedness
included in the Offer, (B) the allocation of the Net Available Cash from the
Asset Dispositions pursuant to which such Offer is being made and (C) the
compliance of such allocation with the provisions of Section 4.06(a) and (b). On
such date, the Company shall also irrevocably deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust) in Temporary Cash Investments, maturing on the last day prior
to the Purchase Date or on the Purchase Date if funds are immediately available
by open of business, an amount equal to the Offer Amount to be held for payment
in accordance with the provisions of this Section. If the Offer includes other
unsubordinated Indebtedness, the deposit described in the preceding sentence may
be made with any other paying agent pursuant to arrangements satisfactory to the
Trustee. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for cancellation the
Securities or portions thereof which have been properly tendered to and are to
be accepted by the Company. The Trustee shall, on the Purchase Date, mail or
deliver payment (or cause the delivery of payment) to each tendering Holder in
the amount of the purchase price. In the event that the aggregate purchase price
of the Securities delivered by the Company to the Trustee is less than the Offer
Amount applicable to the Securities, the Trustee shall deliver the excess to the
Company immediately after the expiration of the Offer Period for application in
accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date, a telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. Holders whose Securities are purchased
only in part shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that
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such Securities are to be accepted by the Company pursuant to and in accordance
with the terms of this Section. A Security shall be deemed to have been accepted
for purchase at the time the Trustee, directly or through an agent, mails or
delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the purchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue of its compliance with
such securities laws or regulations.
SECTION 4.07. Limitation on Affiliate Transactions. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property, employee compensation arrangements or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction") unless (1) the terms thereof are no less favorable to
the Company or such Restricted Subsidiary than those that could be obtained at
the time of such Affiliate Transaction in arm's-length dealings with a Person
who is not such an Affiliate; (2) if such Affiliate Transaction involves an
amount in excess of $2.5 million, the terms of the Affiliate Transaction are set
forth in writing and a majority of the directors of the Company disinterested
with respect to such Affiliate Transaction have determined in good faith that
the criteria set forth in clause (1) are satisfied and have approved the
relevant Affiliate Transaction as evidenced by a resolution of the Board of
Directors; and (3) if such Affiliate Transaction involves an amount in excess of
$10.0 million, the Board of Directors shall also have received a written opinion
from an Independent Qualified Party to the effect that such Affiliate
Transaction is fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries or is not less favorable to the Company and its
Restricted Subsidiaries than could reasonably be expected to be obtained at the
time in an arm's-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.07(a) shall not prohibit (1) any
Investment (other than a Permitted Investment) or other Restricted Payment, in
each case permitted to be made pursuant to Section 4.04; (2) any issuance of
securities, or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors; (3) loans or advances to
employees or consultants in the ordinary course of business of the Company or
its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the
aggregate outstanding at any one time; (4) the payment of reasonable fees and
compensation to, or the provision of employee benefit arrangements and indemnity
for the benefit of, directors, officers, employees and consultants of the
Company and its Restricted Subsidiaries in the ordinary course of business; (5)
any transaction between or among the Company, any Restricted Subsidiary or joint
venture or similar entity which would constitute an Affiliate Transaction solely
because the Company or a Restricted Subsidiary owns an equity interest in or
otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(6) the
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issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company; (7) the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under the terms of any stockholders
agreement (including any registration rights agreement or purchase agreement
related thereto) or warrant agreement to which it is a party as of the Issue
Date and any similar agreements which it may enter into thereafter; provided,
however, that the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the Issue
Date shall only be permitted by this clause (7) to the extent that the terms of
any such amendment or new agreement are not otherwise disadvantageous to the
Holders in any material respect; (8) the payment of fees and other expenses to
be paid by the Company or any of its Subsidiaries in connection with the Merger;
(9) any agreement as in effect on the Issue Date and described in the Offering
Circular or any renewals, extensions or amendments of any such agreement (so
long as such renewals, extensions or amendments are not less favorable to the
Company or the Restricted Subsidiaries)and the transactions evidenced thereby;
and (10) transactions with customers, clients, suppliers or purchasers or
sellers of goods or services in each case in the ordinary course of business and
otherwise in compliance with the terms of the applicable Indenture which are
fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the Board of Directors of the Company or the senior management
thereof, or are on terms at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party.
SECTION 4.08. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries. The Company (1) shall not, and shall not permit any
Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of any
Capital Stock of any Restricted Subsidiary to any Person (other than to the
Company, XX Xxxxxxx or a Wholly Owned Subsidiary), and (2) shall not permit any
Restricted Subsidiary to issue any of its Capital Stock (other than, if
necessary, shares of its Capital Stock constituting directors' or other legally
required qualifying shares) to any Person (other than the Company, XX Xxxxxxx or
a Wholly Owned Subsidiary) unless (A) immediately after giving effect to such
issuance, sale or other disposition, neither the Company nor any of its
Subsidiaries owns any Capital Stock of such Restricted Subsidiary or (B)
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person (other than in the case of an Exempt
Subsidiary) remaining after giving effect thereto is treated as a new Investment
by the Company and such Investment would have been permitted to be made under
Section 4.04 if made on the date of such issuance, sale or other disposition.
SECTION 4.09. Change of Control. (a) Upon the occurrence of a
Change of Control, each Holder shall have the right to require that the Company
purchase such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof on the date of purchase plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the terms contemplated in Section
4.09(b). In the event that at the time of such Change of Control the terms of
the Credit Agreement prohibit the Company from making a Change of Control Offer
or from
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purchasing Securities pursuant thereto, then prior to the mailing of the notice
to Holders provided for in Section 4.09(b) below but in any event within 30 days
following any Change of Control, the Company shall (1) repay in full all
indebtedness outstanding under the Credit Agreement offer to repay in full all
such indebtedness and repay the indebtedness of each lender who has accepted
such offer or (ii) obtain the requisite consent under the Credit Agreement to
permit the repurchase of the Securities as provided for in Section 4.09(b).
(b) Within 30 days following any Change of Control, unless the
Company has exercised its option to redeem all the Securities pursuant to
paragraph 5 of the Securities the Company shall mail a notice to each Holder
with a copy to the Trustee (the "Change of Control Offer") stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Company to purchase such Holder's
Securities at a purchase price in cash equal to 101% of the principal
amount thereof on the date of purchase plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest on the relevant
interest payment date);
(2) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization, in each case after
giving effect to such Change of Control);
(3) the purchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions, as determined by the Company,
consistent with this Section, that a Holder must follow in order to have
its Securities purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly
completed, to the Company at the address specified in the notice at
least three Business Days prior to the purchase date. Holders will be
entitled to withdraw their election if the Trustee or the Company
receives not later than one Business Day prior to the purchase date, a
telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Security which was delivered
for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the Company
under this Section shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued
and unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, 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 Section applicable to a Change of Control
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Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer or if the Company has exercised its
option to redeem all the Securities pursuant to paragraph 6 of the Securities.
(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the purchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue of its compliance with
such securities laws or regulations.
SECTION 4.10. Limitation on Liens. The Company will not create,
incur, assume or suffer to exist any Liens of any kind against or upon any
property or assets of the Company or any of its Restricted Subsidiaries whether
owned on the Issue Date or acquired after the Issue Date, or any proceeds
therefrom, in each case, created or acquired to secure Indebtedness of the
Company, unless, except in the case of Liens securing Indebtedness that is
subordinate or junior in right of payment to the Securities which shall not be
permitted, the Securities are equally and ratably secured, except for:
(a) Liens existing as of the Issue Date to the extent and in
the manner such Liens are in effect as of the Issue Date;
(b) Liens securing the Securities and Liens securing
Indebtedness guarantees of Indebtedness under the Credit Agreement;
(c) Liens of the Company or a Restricted Subsidiary of the
Company on assets of any Subsidiary of the Company;
(d) Liens securing Refinancing Indebtedness which is incurred
to Refinance Indebtedness which has been secured by a Lien permitted
under this Indenture and which has been incurred in accordance with the
provisions of this Indenture; provided that such Liens (i) are no less
favorable to the Holders and are no more favorable to the lienholders
with respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced and (ii) do not extend to or cover any property or
assets of the Company or any of its Subsidiaries not securing the
Indebtedness so Refinanced; and
(e) Permitted Liens.
SECTION 4.11. Conduct of Business. The Company will not, and
will not permit its Restricted Subsidiaries to, engage in any business which is
not a Related Business.
SECTION 4.12. Compliance Certificate. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company
an Officers' Certificate stating that in the course of the performance by the
signers of their duties as
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Officers of the Company they would normally have knowledge of any Default and
whether or not the signers know of any Default that occurred during such period.
If they do, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA Section 314(a)(4).
SECTION 4.13. Payment of Additional Interest. If additional
interest is payable by the Company pursuant to the Registration Rights Agreement
and paragraph 1 of the Securities, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such additional interest
that is payable, (ii) whether and to what extent such additional interest is to
be in the form of PIK Interest, and (iii) the date on which such interest is
payable. Unless and until the Trustee receives such a certificate, the Trustee
may assume without inquiry that no Registration Default (as defined in the
Registration Rights Agreement) exists and that no additional interest is owed by
the Company. If the Company has paid additional interest directly to the persons
entitled to such interest, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.
SECTION 4.14. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE 5
MERGER AND CONSOLIDATION
Following the first day that (a) the ratings assigned to the
Notes by both of the Rating Agencies are Investment Grade Ratings and (b) no
Default has occurred and is continuing under this Indenture (and notwithstanding
that the Company may later cease to have an Investment Grade Rating from either
or both Rating Agencies or default under this Indenture), the Company shall not
be subject to clause (3) of Section 5.01(a).
SECTION 5.01. When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease, in one transaction or a series of transactions, directly or indirectly,
all or substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia and the Successor Company (if not the Company) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all the obligations of the Company under the Securities and
this Indenture;
(2) immediately after giving pro forma effect to such
transaction (and treating any Indebtedness which becomes an obligation
of the Successor Company or any Subsidiary as a result of such
transaction as having been Incurred by the
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Successor Company or such Subsidiary at the time of such transaction),
no Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such
transaction, the Successor Company would be able to Incur an additional
$1.00 of Indebtedness pursuant to Section 4.03(a); and
(4) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture;
provided, however, that clause (3) shall not be applicable to (A) a Restricted
Subsidiary consolidating with, merging into or transferring all or part of its
properties and assets to the Company or (B) the Company merging with an
Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction.
The Successor Company shall be the successor to the Company and
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture, and the predecessor Company, except in the
case of a lease, shall be released from the obligation to pay the principal of
and interest on the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(i) (1) the Company defaults in any payment of interest on
any Security when the same becomes due and payable and such
default continues for a period of 30 days;
(ii) (2) the Company (i) defaults in the payment of the
principal of any Security when the same becomes due and payable
at its Stated Maturity, upon redemption, upon declaration of
acceleration or otherwise;
(iii) (3) the Company fails to comply with Section 5.01;
(iv) (4) the Company fails to comply with Section 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 or 4.11 (other than a
failure to purchase Securities when required under Section 4.06
or 4.09) and such failure continues for 30 days after the notice
specified below;
(v) (5) the Company fails to comply with any of its
agreements in the Securities or this Indenture (other than those
referred to in clause (1), (2), (3) or (4) above) and such
failure continues for 60 days after the notice specified below;
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(vi) Indebtedness of the Company or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or
is accelerated by the holders thereof because of a default and
the total amount of such Indebtedness unpaid or accelerated
exceeds $10.0 million, or its foreign currency equivalent at the
time;
(vii) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(viii) (8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or
any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
(ix) any judgment or decree for the payment of money (other than
judgments which are covered by enforceable insurance policies
issued by solvent carriers) in excess of $10.0 million is
entered against the Company or any Significant Subsidiary,
remains outstanding for a period of 60 consecutive days
following the entry of such judgment or decree and is not
discharged, waived or the execution thereof stayed within 10
days after the notice specified below;
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of
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law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or
any similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clauses (4), (5) or (9) is not an Event of
Default until the Trustee or the holders of at least 25% in principal amount of
the outstanding Securities notify the Company of the Default and the Company
does not cure such Default within the time specified after receipt of such
notice. Such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6) or (10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9), its status and what action the Company is taking or
proposes to take with respect thereto.
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SECTION 6.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 6.01(7) or (8) with respect to the Company)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in principal amount of the Securities by notice to the Company
and the Trustee, may declare the principal of and accrued but unpaid interest on
all the Securities to be due and payable; provided, however, that so long as any
Bank Indebtedness remains outstanding, no such acceleration shall be effective
until the earlier of (1) five Business Days after the giving of written notice
to the Company and the administrative agent (or similar agent if there is no
administrative agent) under the Credit Agreement and (2) the day on which any
Bank Indebtedness is accelerated. Upon such a declaration, such principal and
interest shall be due and payable immediately. If an Event of Default specified
in Section 6.01(7) or (8) with respect to the Company occurs and is continuing,
the principal of and interest on all the Securities shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Securityholders. The Holders of a majority in principal
amount of the Securities by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (i) a Default in the payment of the
principal of or interest on a Security (ii) a Default arising from the failure
to redeem or purchase any Security when required pursuant to this Indenture or
(iii) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is
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unduly prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such
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judicial proceeding is hereby authorized by each Holder to make 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 it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under
Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of senior indebtedness of the Company as certified
to the Trustee by the Company;
THIRD: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
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SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, 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 pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to
the extent it may lawfully do so under applicable law) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and (2) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through 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 which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect to any action taken,
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omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay
to the Trustee from time to time reasonable compensation for its services. 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 upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. 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
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not relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee may have separate counsel and the Company shall pay
the fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(7) or (8) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
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 Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets (including the administration of the
trust created by this Indenture) to, another corporation or banking association,
the resulting, surviving or transferee corporation without any further act shall
be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee (or, in
the case of a subsidiary of a bank holding company, its corporate parent) shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Securities; Defeasance.
(a) When (1) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.07) for cancellation or
(2) all outstanding Securities have become due and payable, whether at maturity
or on a redemption date as a result of the
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mailing of a notice of redemption pursuant to Article 3 hereof and the Company
irrevocably deposits with the Trustee funds sufficient to pay at maturity or
upon redemption all outstanding Securities, including interest thereon to
maturity or such redemption date (other than Securities replaced pursuant to
Section 2.07), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 8.01(c),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (1) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (2) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 and the operation
of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) and the
limitations contained in Section 5.01(a)(3) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of
the Securities may not be accelerated because of an Event of Default with
respect thereto. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in
the case of Sections 6.01(7) and (8), with respect only to Significant
Subsidiaries) or because of the failure of the Company to comply with Section
5.01(a)(3).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise
its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of and
interest on the Securities to maturity or redemption, as the case may
be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide
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cash at such times and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel 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 Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of such
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 defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders 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; and
(8) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Securities as contemplated by this
Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
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SECTION 8.03. Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities
so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend this Indenture, or the Securities without notice to or consent
of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued
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in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Securities or to
secure the Securities;
(5) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred upon
the Company;
(6) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(7) to make any change that does not adversely affect the
rights of any Securityholder.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange for the
Securities). However, without the consent of each Securityholder affected
thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal amount of or extend the Stated
Maturity of any Security;
(4) reduce the amount payable upon the redemption of any
Security or change the time at which any Security may or shall be
redeemed in accordance with Article 3;
(5) make any Security payable in money other than that
stated in the Security;
(6) make any changes in the ranking or priority of any
Security that would adversely affect the Securityholders; or
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(7) make any change in Section 6.04 or 6.07 or the second
sentence of this Section.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article 9 if the amendment does not
adversely
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affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may but need not sign it. In signing such amendment the Trustee
shall be entitled to receive indemnity reasonably satisfactory to it and to
receive, and (subject to Section 7.01) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that such amendment
is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 00.00.Xxxxx Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02.Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
CBRE Holding, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx
Attention: Xxxx Xxxxxx
if to the Trustee:
State Street Bank and Trust Company
of California, N.A.
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Administration
(CBRE Holding, Inc.
16% Senior Notes Due July 20, 2011)
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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Any notice or communication mailed to a Securityholder shall be
mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.03.Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.04.Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05.Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.06.When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction,
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waiver or consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so disregarded. Also, subject to
the foregoing, only Securities outstanding at the time shall be considered in
any such determination.
SECTION 10.07.Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 00.00.Xxxxx Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which commercial banking institutions are authorized or
required by law to close in New York City. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
SECTION 10.09.Governing Law. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 00.00.Xx Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 10.11.Successors. All agreements of the Company in this
Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.12.Multiple 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. One signed copy is enough to
prove this Indenture.
SECTION 10.13.Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
CBRE HOLDING, INC.
By:
-----------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.
By:
-----------------------------------------
Name:
Title:
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RULE 144A/IAI APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix the following terms shall have
the meanings indicated below:
"Applicable Procedures" means with respect to any transfer or
exchange of interests in a Global Security, the rules and procedures of DTC that
apply to such transfer or exchange.
"Depository" or "DTC" means The Depository Trust Company, its
nominees and their respective successors.
"Exchange Securities" means (1) the 16% Senior Notes Due July 20,
2011 issued pursuant to the Indenture in connection with a Registered Exchange
Offer pursuant to a Registration Rights Agreement and (2) Additional Securities,
if any, issued pursuant to a registration statement filed with the SEC under the
Securities Act.
"Initial Purchaser" means (1) with respect to the Initial
Securities issued on the Issue Date, Credit Suisse First Boston Corporation and
(2) with respect to each issuance of Additional Securities, the Persons
purchasing such Additional Securities under the related Purchase Agreement.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a) (1), (2), (3) or
(7) under the Securities Act.
"Initial Securities" means (1) $65.0 million aggregate principal
amount of 16% Senior Notes Due July 20, 2011 issued on the Issue Date and (2)
Additional Securities, if any, issued in a transaction exempt from the
registration requirements of the Securities Act.
"Private Exchange" means the offer by the Company, pursuant to a
Registration Rights Agreement, to the Initial Purchaser to issue and deliver to
the Initial Purchaser, in exchange for the Initial Securities held by the
Initial Purchaser as part of its initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means any 16% Senior Notes Due July
20, 2011 issued in connection with a Private Exchange.
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"Purchase Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Purchase Agreement dated June 29, 2001
between the Company and the Initial Purchaser, as such agreement has been
amended on or prior to the date hereof, and (2) with respect to each issuance of
Additional Securities (other than Additional Securities issued as PIK Interest),
the purchase agreement or underwriting agreement among the Company and the
Persons purchasing such Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Rights Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means (1) with respect to the
Initial Securities issued on the Issue Date, the Registration Rights Agreement
dated July 20, 2001 between the Company and the Initial Purchaser, and (2) with
respect to each issuance of Additional Securities (other than Additional
Securities issued as PIK Interest) issued in a transaction exempt from the
registration requirements of the Securities Act, the registration rights
agreement, if any, among the Company and the Persons purchasing such Additional
Securities under the related Purchase Agreement.
"Securities" means the Initial Securities, the Exchange
Securities and the Private Exchange Securities, treated as a single class.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository), or any successor Person
thereto and shall initially be the Trustee.
"Shelf Registration Statement" means the registration statement
issued by the Company in connection with the offer and sale of Initial
Securities or Private Exchange Securities pursuant to a Registration Rights
Agreement.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.3(b)hereto.
1.2 Other Definitions
Defined
Term in Section
---- ----------
"Agent Members" 2.1(b)
"Global Security" 2.1(a)
"Restricted Global Security" 2.1(a)
"Rule 144A" 2.1(a)
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2. The Securities.
2.1 (a) Form and Dating. Initial Securities offered and sold to
QIBs in reliance on Rule 144A under the Securities Act ("Rule 144A") or to
Institutional Accredited Investors, in each case as provided in the Purchase
Agreement, and Private Exchange Securities, as provided in the Registration
Rights Agreement, shall be issued initially in the form of one or more permanent
global Securities in definitive, fully registered form without interest coupons
with the global securities legend and restricted securities legend set forth in
Exhibit 1 hereto (each, a "Restricted Global Security"), which shall be
deposited on behalf of the purchasers of the Initial Securities represented
thereby with the Trustee, at its principal corporate trust office, as custodian
for the Depository (or with such other custodian as the Depository may direct),
and registered in the name of the Depository or a nominee of the Depository,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee as hereinafter provided. Exchange
Securities shall be issued in global form (with the global securities legend set
forth in Exhibit 1 hereto) or in certificated form at the option of the Holders
thereof from time to time. Exchange Securities issued in global form and
Restricted Global Securities are sometimes referred to in this Appendix as
"Global Securities."
(b) (b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Security, and the Company, the Trustee and any
agent of the Company or the Trustee shall be entitled to treat the Depository as
the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
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(c) (c) Certificated Securities. Except as provided in this
Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Restricted
Global Securities shall not be entitled to receive physical delivery of
certificated Securities.
2.2 Authentication. The Trustee shall authenticate and deliver:
(1) on the Issue Date, an aggregate principal amount of $65.0 million 16% Senior
Notes Due July 20, 2011, (2) any Additional Securities (other than Additional
Securities issued as PIK Interest) for an original issue in an aggregate
principal amount specified in the Officers' Certificate of the Company pursuant
to Section 2.13 of the Indenture, (3) Exchange Securities or Private Exchange
Securities for issue only in a Registered Exchange Offer or a Private Exchange,
respectively, pursuant to a Registration Rights Agreement, for a like principal
amount of Initial Securities, and (4) any Additional Securities issued as PIK
Interest in accordance with paragraph 1 of the Security, in each case upon a
written order of the Company signed by one Officer. Such order shall specify the
amount of the Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated and, in the case of any issuance of
Additional Securities (other than Additional Securities issued as PIK Interest)
pursuant to Section 2.13 of the Indenture, shall certify that such issuance is
in compliance with Section 4.03 of the Indenture.
2.3 Transfer and Exchange.
(d) (a) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depository therefor. A transferor of a beneficial interest in a Global
Security shall deliver to the Registrar a written order given in accordance with
the Depositary's procedures containing information regarding the participant
account of the Depositary to be credited with a beneficial interest in the
Global Security. The Registrar shall, in accordance with such instructions
instruct the Depositary to credit to the account of the Person specified in such
instructions a beneficial interest in the Global Security and to debit the
account of the Person making the transfer the beneficial interest in the Global
Security being transferred.
(A) (ii) Notwithstanding any other provisions of
this Appendix (other than the provisions set forth
in Section 2.4), a Global Security may not be
transferred as a whole except by the Depository to
a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of
the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of
such successor Depository.
(B) (iii) In the event that a Restricted Global
Security is exchanged for Securities in
certificated registered form pursuant to Section
2.4 of this Appendix, prior to the consummation of
a
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Registered Exchange Offer or the effectiveness of a
Shelf Registration Statement with respect to such
Securities, such Securities may be exchanged only
in accordance with such procedures as are
substantially consistent with the provisions of
this Section 2.3 (including the certification
requirements set forth on the reverse of the
Initial Securities intended to ensure that such
transfers comply with Rule 144A or are made to
Institutional Accredited Investors, as the case may
be) and such other procedures as may from time to
time be adopted by the Company.
(C) (iv) In connection with all transfers and
exchanges of interests in Global Securities (other
than transfers of interests in a Global Security to
Persons who take delivery thereof in the form of an
interest in the same Global Security), the
transferor of such interest must deliver to the DTC
(1) instructions given in accordance with the
Applicable Procedures from an Agent Member or an
indirect Agent Member directing DTC to credit or
cause to be credited an interest in the specified
transferee Global Security in an amount equal to
the interest to be transferred or exchanged and to
debit or cause to be debited an interest in the
specified transferor Global Security also in an
amount equal to the interest to be transferred or
exchanged, and (2) a written order given in
accordance with the Applicable Procedures
containing information regarding the Agent Member
account to be credited and/or debited with such
increase or decrease. In addition, the principal
amount of Securities represented by such transferor
Global Security shall be reduced accordingly and an
endorsement shall be made on such transferor Global
Security by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction;
and the principal amount of Securities represented
by such transferee Global Security shall be
increased accordingly and an endorsement shall be
made on such Global Security by the Trustee or by
the Depositary at the direction of the Trustee to
reflect such increase.
(e) (b) Legend.
(A) (i) Except as permitted by the following
paragraphs (ii), (iii) and (iv), each Security
certificate evidencing the Restricted Global
Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a
legend in substantially the following form:
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THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) THE COMPANY, (II) IN 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, (III) TO INVESTORS THAT ARE INSTITUTIONAL
"ACCREDITED INVESTORS" (AS DEFINED IN RULE 501(a) (1), (2), (3) or (7)
UNDER THE SECURITIES ACT), (IV) PURSUANT TO EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.
(B) (ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer
Restricted Security represented by a Restricted
Global Security) pursuant to Rule 144 under the
Securities Act, the Registrar shall permit the
transferee thereof to exchange such Transfer
Restricted Security for a certificated Security
that does not bear the legend set forth above and
rescind any restriction on the transfer of such
Transfer Restricted Security, if the transferor
thereof certifies in writing to the Registrar that
such sale or transfer was made in reliance on Rule
144 (such certification to be in the form set forth
on the reverse of the Security).
(C) (iii) After a transfer of any Initial
Securities or Private Exchange Securities pursuant
to and during the period
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of the effectiveness of a Shelf Registration
Statement with respect to such Initial Securities
or Private Exchange Securities, as the case may be,
all requirements pertaining to legends on such
Initial Security or such Private Exchange Security
will cease to apply, the requirements requiring any
such Initial Security or such Private Exchange
Security issued to certain Holders be issued in
global form will cease to apply, and a certificated
Initial Security or Private Exchange Security or an
Initial Security or Private Exchange Security in
global form, in each case without restrictive
transfer legends, will be available to the
transferee of the Holder of such Initial Securities
or Private Exchange Securities upon exchange of
such transferring Holder's certificated Initial
Security or Private Exchange Security or directions
to transfer such Holder's interest in the Global
Security, as applicable.
(D) (iv) Upon the consummation of a Registered
Exchange Offer with respect to the Initial
Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued
to certain Holders be issued in global form will
still apply with respect to Holders of such Initial
Securities that do not exchange their Initial
Securities, and Exchange Securities in certificated
or global form will be available to Holders that
exchange such Initial Securities in such Registered
Exchange Offer.
(E) (v) Upon the consummation of a Private
Exchange with respect to the Initial Securities,
all requirements pertaining to such Initial
Securities that Initial Securities issued to
certain Holders be issued in global form will still
apply with respect to Holders of such Initial
Securities that do not exchange their Initial
Securities, and Private Exchange Securities in
global form with the global securities legend and
the Restricted Securities Legend set forth in
Exhibit 1 hereto will be available to Holders that
exchange such Initial Securities in such Private
Exchange.
(f) (c) Cancellation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been exchanged
for certificated Securities, redeemed, purchased or canceled, such Global
Security shall be returned to the Depository for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for certificated
Securities, redeemed, purchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if
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it is then the Securities Custodian for such Global Security) with respect to
such Global Security, by the Trustee or the Securities Custodian, to reflect
such reduction.
(g) (d) Obligations with Respect to Transfers and Exchanges of
Securities.
(A) (i) To permit registrations of
transfers and exchanges, the Company shall
execute and the Trustee shall authenticate
certificated Securities and Global Securities at
the Registrar's or co-registrar's request.
(B) (ii) No service charge shall be made
for any registration of transfer or exchange,
but the Company may require payment of a sum
sufficient to cover any transfer tax,
assessments, or similar governmental charge
payable in connection therewith (other than any
such transfer taxes, assessments or similar
governmental charge payable upon exchange or
transfer pursuant to Sections 2.06, 3.06 and
4.09 of the Indenture).
(C) (iii) The Registrar or co-registrar
shall not be required to register the transfer
of or exchange of any Security for a period
beginning 15 Business Days before the mailing of
a notice of an offer to repurchase or redeem
Securities or 15 Business Days before an
interest payment date.
(D) (iv) Prior to the due presentation
for registration of transfer of any Security,
the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat
the person in whose name a Security is
registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and interest on such Security and
for all other purposes whatsoever, whether or
not such Security is overdue, and none of the
Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected
by notice to the contrary.
(E) (v) All Securities issued upon any
transfer or exchange pursuant to the terms of
this Indenture shall evidence the same debt and
shall be entitled to the same benefits under
this Indenture as the Securities surrendered
upon such transfer or exchange.
(e) No Obligation of the Trustee.
(F) (i) The Trustee shall have no
responsibility or obligation to any beneficial
owner of a Global Security, a
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member of, or a participant in the Depository or
other Person with respect to the accuracy of the
records of the Depository or its nominee or of
any participant or member thereof, with respect
to any ownership interest in the Securities or
with respect to the delivery to any participant,
member, beneficial owner or other Person (other
than the Depository) of any notice (including
any notice of redemption) or the payment of any
amount, under or with respect to such
Securities. All notices and communications to be
given to the Holders and all payments to be made
to Holders under the Securities shall be given
or made only to or upon the order of the
registered Holders (which shall be the
Depository or its nominee in the case of a
Global Security). The rights of beneficial
owners in any Global Security shall be exercised
only through the Depository subject to the
applicable rules and procedures of the
Depository. The Trustee may rely and shall be
fully protected in relying upon information
furnished by the Depository with respect to its
members, participants and any beneficial owners.
(G) (ii) The Trustee shall have no
obligation or duty to monitor, determine or
inquire as to compliance with any restrictions
on transfer imposed under this Indenture or
under applicable law with respect to any
transfer of any interest in any Security
(including any transfers between or among
Depository participants, members or beneficial
owners in any Global Security) other than to
require delivery of such certificates and other
documentation or evidence as are expressly
required by, and to do so if and when expressly
required by, the terms of this Indenture, and to
examine the same to determine substantial
compliance as to form with the express
requirements hereof.
2.4 Certificated Securities.
(h) (a) A Restricted Global Security deposited with the
Depository or with the Trustee as custodian for the Depository pursuant to
Section 2.1 shall be transferred to the beneficial owners thereof in the form of
certificated Securities in an aggregate principal amount equal to the principal
amount of such Global Security, in exchange for such Global Security, only if
such transfer complies with Section 2.3 and (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for such
Restricted Global Security or if at any time such Depository ceases to be a
"clearing agency" registered under the Exchange Act and a successor depositary
is not appointed by the Company within 90 days of such notice, or (ii) an Event
of Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the issuance
of certificated Securities under this Indenture.
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(i) (b) Any Restricted Global Security that is transferable to
the beneficial owners thereof pursuant to this Section shall be surrendered by
the Depository to the Trustee located at its principal corporate trust office in
the Borough of Manhattan, The City of New York, to be so transferred, in whole
or from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Restricted Global
Security, an equal aggregate principal amount of certificated Initial Securities
of authorized denominations. Any portion of a Restricted Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 principal amount and any integral
multiple thereof and registered in such names as the Depository shall direct.
Any certificated Initial Security or Private Exchange Security delivered in
exchange for an interest in the Restricted Global Security shall, except as
otherwise provided by Section 2.3(b), bear the restricted securities legend set
forth in Exhibit 1 hereto.
(j) (c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security shall be entitled to grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(k) (d) In the event of the occurrence of either of the events
specified in Section 2.4(a), the Company shall promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
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EXHIBIT 1
TO
RULE 000X/XXX XXXXXXXX
[FORM OF FACE OF INITIAL SECURITY]
[GLOBAL SECURITIES LEGEND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
(l) THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A
92
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO INVESTORS THAT
ARE INSTITUTIONAL "ACCREDITED INVESTORS" (AS DEFINED IN RULE 501(a) (1), (2),
(3) or (7) UNDER THE SECURITIES ACT), (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
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CUSIP NO. ___________ $
16% SENIOR NOTES DUE JULY 20, 2011
CBRE Holding, Inc., a Delaware corporation, promises to pay to ,or
registered assigns, the principal sum of Dollars on July 20, 2011.
Interest Payment Dates: January 20, April 20, July 20 and October 20.
Record Dates: January 5, April 5, July 5 and October 5.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: July 20, 2001
CBRE HOLDING, INC.
By:
-----------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A. as Trustee, certifies
that this is one of the Securities referred to in the Indenture.
by: __________________________________
Authorized Signatory
94
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
16% SENIOR NOTE DUE JULY 20, 2011
1. Interest
CBRE Holding, Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per annum
(increasing by an additional 0.50% per annum after each consecutive 90-day
period that occurs after the date on which such Registration Default occurs up
to a maximum additional interest rate of 2.00%) from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured.
The Company will pay interest quarterly on January 20, April 20,
July 20 and October 20 of each year, commencing October 20, 2001; provided,
however, that (i) until the fifth anniversary of the issuance of the Securities,
interest in excess of 12% per annum may, at the option of the Company, be in the
form of PIK Interest and (ii) to the extent XX Xxxxxxx'x ability to pay cash
dividends to the Company is at such time restricted by the terms of the Credit
Agreement in effect on the Issue Date or as thereafter amended, modified or any
replacement facility or Refinancing Indebtedness; provided, however, that the
terms of such Credit Agreement as amended, or modified, or such replacement
facility or Refinancing Indebtedness are no more restrictive with respect to the
payment of cash dividends to the Company than the terms of the Credit Agreement
on the Issue Date, interest on the Securities may, at the option of the Company,
be paid in the form of PIK Interest. Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from July 20, 2001. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the January 5, April 5, July 5 and October 5 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. Except in the case of interest paid
in the form of PIK Interest, the Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company
95
will make all payments in respect of a certificated Security (including
principal, premium and interest) by mailing a check to the registered address of
each Holder thereof; provided, however, that payments on a certificated Security
will be made by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer
by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company of California,
N.A. (the "Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
July 20, 2001 ("Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of the Company.
The Company shall be entitled, subject to its compliance with Section 4.03 of
the Indenture, to issue Additional Securities pursuant to Section 2.13 of the
Indenture. The Initial Securities issued on the Issue Date, any Additional
Securities and all Exchange Securities or Private Exchange Securities issued in
exchange therefor will be treated as a single class for all purposes under the
Indenture. The Indenture contains covenants that limit the ability of the
Company and its subsidiaries to incur additional indebtedness; pay dividends or
distributions on, or redeem or repurchase capital stock; make investments; issue
or sell capital stock of subsidiaries; engage in transactions with affiliates;
transfer or sell assets; guarantee indebtedness; restrict dividends or other
payments of subsidiaries; and consolidate, merge or transfer all or
substantially all of its assets and the assets of its subsidiaries. These
covenants are subject to important exceptions and qualifications.
5. Optional Redemption
On and after July 20, 2001, the Company shall be entitled at its
option to redeem all or a portion of the Securities upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed in percentages of
principal amount on the redemption date), plus accrued interest to the
redemption date (subject to the right of Holders of record on
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96
the relevant record date to receive interest due on the related interest payment
date), if redeemed during the 12-month period commencing on July 20 of the years
set forth below:
Redemption Period Price
----------------- -----
2001...................... 116.0%
2002...................... 112.8%
2003...................... 109.6%
2004...................... 106.4%
2005...................... 103.2%
2006 and thereafter....... 100.0%
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued interest
on all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions, to cause the Company to purchase all or
any part of the Securities of such Holder at a purchase price equal to 101% of
the principal amount thereof on the date of purchase plus accrued and unpaid
interest to the date of repurchase (subject to the right of holders of record on
the relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1.00 principal amount and whole multiples of $1.00 A Holder
may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
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97
9. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee shall be
entitled to amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities,
including Guaranties, or to secure the Securities, or to add additional
covenants or surrender rights and powers conferred on the Company, or to comply
with any request of the SEC in connection with qualifying the Indenture under
the Act or to make any change that does not adversely affect the rights of any
Securityholder.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
of the Securities, upon acceleration or otherwise, or failure by the Company to
redeem or purchase Securities when required; (iii) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (iv) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Significant Subsidiary if the amount
accelerated (or so unpaid) exceeds $10.0 million;
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(v) certain events of bankruptcy or insolvency with respect to the Company and
the Significant Subsidiaries; and (vi) certain judgments or decrees for the
payment of money in excess of $10.0 million. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the Securities may declare all the Securities to be due and payable immediately.
Certain events of bankruptcy or insolvency are Events of Default which will
result in the Securities being due and payable immediately upon the occurrence
of such Events of Default.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
16. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
17. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
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18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
19. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
20. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
CBRE Holding, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
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100
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
------------------------------------------------------
(Print or type assignee's name, address and zip code)
------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
------------------------------------------------------------
Date: ________________ Your Signature: _____________________
-------------------------------------------------------------
Sign exactly as your name appears on the other side of this
Security.
In connection with any transfer of any of the Securities
evidenced by this certificate occurring prior to the expiration of the period
referred to in Rule 144(k) under the Securities Act after the later of the date
of original issuance of such Securities and the last date, if any, on which such
Securities were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Securities are being transferred in accordance
with its terms:
CHECK ONE BOX BELOW
(1)[ ] to the Company; or
(2)[ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3)[ ] to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that purchases for
its own account or for the account of a qualified
institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
(4)[ ] to investors that are institutional "accredited investors"
(as defined in Rule 501(a) (1), (2), (3) or (7) under the
Securities Act of 1933; or
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101
(5)[ ] pursuant to the exemption from registration provided by
Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that if box
(4) or (5) is checked, the Trustee shall be entitled to require, prior to
registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of 1933, such as the exemption provided by Rule 144 under such Act.
------------------------
Signature
Signature Guarantee:
------------------------
Signature
------------------------------
Signature must be guaranteed
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
------------------ ------------------------------
NOTICE: To be executed by an executive officer
TO BE COMPLETE BY PURCHASER IF (4) ABOVE IS CHECKED
The undersigned represents and warrants that it is an
institutional "accredited investor" (as defined in Rule 501(a) (1), (2), (3) or
(7) of Regulation D under the Securities
-8-
102
Act) and has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of its investment in the
Securities, and it and any accounts for which it is acting are each able to bear
the economic risk of its or their investment, as the case may be. It is
acquiring the Securities purchased by it for its account or for one or more
accounts (each of which is an institutional "accredited investor") as to each of
which it exercises sole investment discretion.
Dated:
------------------ -------------------------------
NOTICE: To be executed by an executive officer
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Principal Signature of
Amount of Amount of amount of this authorized
decrease in increase in Global Security officer of
Principal amount Principal amount following such Trustee or
of this Global of this Global decrease or Securities
Date of Exchange Security Security increase) Custodian
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104
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.06 or 4.09 of the Indenture, state the
amount in principal amount: $ .
Date: Your Signature:
--------------- ------------------------------------
(Sign exactly as your name appears on
the other side of this Security.)
Signature Guarantee:
---------------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
-11-
105
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY]
*If the Security is to be issued in global form add the Global
Securities Legend from Exhibit 1 to Appendix A and the attachment from such
Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL SECURITY".
**If the Security is a Private Exchange Security issued in a
Private Exchange to an Initial Purchaser holding an unsold portion of its
initial allotment, add the Restricted Securities Legend from Exhibit 1 to
Appendix A and replace the Assignment Form included in this Exhibit A with the
Assignment Form included in such Exhibit 1.
106
CUSIP No. $
-------------
16% Senior Notes Due July 20, 2011
CBRE Holding, Inc., a Delaware corporation, promises to pay
to , or registered assigns, the principal sum of Dollars
on July 20, 2011.
Interest Payment Dates: January 20, April 20, July 20 and
October 20.
Record Dates: January 5, April 5, July 5 and October 5.
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
CBRE HOLDING, INC.
By:
-----------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A. as Trustee, certifies
that this is one of the Securities referred to in the Indenture.
by:
-----------------------------
Authorized Signatory
[FORM OF REVERSE SIDE OF SECURITY
OR PRIVATE EXCHANGE SECURITY]
16% SENIOR NOTE DUE JULY 20, 2011
1. Interest
CBRE Holding, Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above[; provided, however, that if
a Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security
107
at a rate of 0.50% per annum (increasing by an additional 0.50% per annum after
each consecutive 90-day period that occurs after the date on which such
Registration Default occurs up to a maximum additional interest rate of 2.00%)
from and including the date on which any such Registration Default shall occur
to but excluding the date on which all Registration Defaults have been
cured.](3) The Company will pay interest quarterly on January 20, April 20,
July 20 and October 20 of each year, commencing October 20, 2001; provided,
however, that (i) until the fifth anniversary of the issuance of the
Securities, interest in excess of 12% per annum may, at the option of the
Company, be PIK Interest and (ii) to the extent XX Xxxxxxx'x ability to pay
cash dividends to the Company is at such time restricted by the terms of the
Credit Agreement in effect on the Issue Date or as thereafter amended, modified
or any replacement facility or Refinancing Indebtedness; provided, however,
that the terms of such Credit Agreement as amended, or modified, or such
replacement facility or Refinancing Indebtedness are no more restrictive with
respect to the payment of cash dividends to the Company than the terms of the
Credit Agreement on the Issue Date, interest on the Securities may, at the
option of the Company, be paid in the form of PIK Interest. Interest on the
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from July 20, 2001. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the January 5, April 5, July 5 and October 5 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. Except in the case of interest paid
in the form of PIK Interest, the Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company will make all payments in
respect of a certificated Security (including principal, premium and interest)
by mailing a check to the registered address of each Holder thereof; provided,
however, that payments on a certificated Security will be made by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such account no
later than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company of California,
N.A. (the "Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and
-------------------
(3) Insert if at the date of issuance of the Exchange Security or Private
Exchange Security (as the case may be) any Registration Default has
occurred with respect to the related Initial Securities during the
interest period in which such date of issuance occurs.
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change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
July 20, 2001 ("Indenture"), between the Company, and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of the Company.
The Company shall be entitled, subject to its compliance with Section 4.03 of
the Indenture, to issue Additional Securities pursuant to Section 2.13 of the
Indenture. The Initial Securities issued on the Issue Date, any Additional
Securities and all Exchange Securities or Private Exchange Securities issued in
exchange therefor will be treated as a single class for all purposes under the
Indenture. The Indenture contains covenants that limit the ability of the
Company and its subsidiaries to incur additional indebtedness; pay dividends or
distributions on, or redeem or repurchase capital stock; make investments; issue
or sell capital stock of subsidiaries; engage in transactions with affiliates;
transfer or sell assets; guarantee indebtedness; restrict dividends or other
payments of subsidiaries; and consolidate, merge or transfer all or
substantially all of its assets and the assets of its subsidiaries. These
covenants are subject to important exceptions and qualifications.
5. Optional Redemption
On and after July 20, 2006, the Company shall be entitled at its
option to redeem all or a portion of the Securities upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed in percentages of
principal amount, on the redemption date) plus accrued interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date), if
redeemed during the 12-month period commencing on July 20 of the years set forth
below:
Redemption Period Price
----------------- -----
2001...................... 116.0%
2002...................... 112.8%
2003...................... 109.6%
2004...................... 106.4%
2005...................... 103.2%
2006 and thereafter....... 100.0%
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 principal amount may
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be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions, to cause the Company to purchase all or
any part of the Securities of such Holder at a purchase price equal to 101% of
the principal amount thereof on the date of purchase plus accrued and unpaid
interest to the date of repurchase (subject to the right of holders of record on
the relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1.00 principal amount and whole multiples of $1.00. A Holder
may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
9. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
110
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee shall be
entitled to amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities,
including Guaranties, or to secure the Securities, or to add additional
covenants or surrender rights and powers conferred on the Company, or to comply
with any request of the SEC in connection with qualifying the Indenture under
the Act, or to make any change that does not adversely affect the rights of any
Securityholder.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
of the Securities, upon acceleration or otherwise, or failure by the Company to
redeem or purchase Securities when required; (iii) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (iv) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Significant Subsidiary if the amount
accelerated (or so unpaid) exceeds $10.0 million; (v) certain events of
bankruptcy or insolvency with respect to the Company and the Significant
Subsidiaries; and (vi) certain judgments or decrees for the payment of money in
excess of $10.0 million. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Securities may
declare all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the
111
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
16. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
17. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
19. Holders' Compliance with Registration Rights Agreement
Each Holder of a Security, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
112
CBRE Holding, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
113
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
------------------------------------------------------------
(Print or type assignee's name, address and zip code)
------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
------------------------------------------------------------
Date: Your Signature:
----------------- ---------------------
------------------------------------------------------------
Sign exactly as your name appears on the other side of this
Security.
114
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.06 or of the Indenture, state the amount in
principal amount: $
Date: Your Signature:
--------------- ----------------------
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee:
-------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.