EXHIBIT 10.1
EXECUTION COPY
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XXXXXXX & XXXXXXXXX LLC,
XXXXXXX & XXXXXXXXX CORP.,
THE SUBSIDIARY GUARANTORS PARTIES HERETO
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
10% Senior Notes due 2014
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INDENTURE
Dated as of July 6, 2006
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions................................................. 1
SECTION 1.2. Other Definitions........................................... 32
SECTION 1.3. Incorporation by Reference of Trust Indenture Act........... 33
SECTION 1.4. Rules of Construction....................................... 34
ARTICLE II
THE SECURITIES
SECTION 2.1. Form, Dating and Terms...................................... 35
SECTION 2.2. Execution and Authentication................................ 42
SECTION 2.3. Registrar and Paying Agent.................................. 44
SECTION 2.4. Paying Agent to Hold Money in Trust......................... 44
SECTION 2.5. Securityholder Lists........................................ 45
SECTION 2.6. Transfer and Exchange....................................... 45
SECTION 2.7. Form of Certificate to be Delivered in Connection with
Transfers to IAIs........................................ 48
SECTION 2.8. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S....................... 50
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities............. 51
SECTION 2.10. Outstanding Securities..................................... 52
SECTION 2.11. Temporary Securities....................................... 53
SECTION 2.12. Cancellation............................................... 53
SECTION 2.13. Payment of Interest; Defaulted Interest.................... 54
SECTION 2.14. Computation of Interest.................................... 55
SECTION 2.15. CUSIP, Common Code and ISIN Numbers........................ 55
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Securities....................................... 55
SECTION 3.2. Limitation on Indebtedness.................................. 56
SECTION 3.3. Limitation on Restricted Payments........................... 61
SECTION 3.4. Limitation on Liens......................................... 67
SECTION 3.5. Limitation on Sale/Leaseback Transactions................... 67
SECTION 3.6. Limitation on Restrictions on Distributions from Restricted
Subsidiaries............................................. 67
SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock.......... 70
SECTION 3.8. Limitation on Affiliate Transactions........................ 73
SECTION 3.9. Change of Control........................................... 75
SECTION 3.10. SEC Reports................................................ 77
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SECTION 3.11. Future Subsidiary Guarantors............................... 77
SECTION 3.12. Maintenance of Office or Agency............................ 78
SECTION 3.13. Corporate Existence........................................ 78
SECTION 3.14. Payment of Taxes and Other Claims.......................... 78
SECTION 3.15. Payments for Consent....................................... 79
SECTION 3.16. Compliance Certificate..................................... 79
SECTION 3.17. Further Instruments and Acts............................... 79
SECTION 3.18. Limitation on Lines of Business............................ 79
SECTION 3.19. Statement by Officers as to Default........................ 79
SECTION 3.20. Restrictions on Activities................................. 79
ARTICLE IV
SUCCESSOR COMPANY
SECTION 4.1. Merger and Consolidation.................................... 80
ARTICLE V
REDEMPTION OF SECURITIES
SECTION 5.1. Redemption.................................................. 82
SECTION 5.2. Applicability of Article.................................... 82
SECTION 5.3. Election to Redeem; Notice to Trustee....................... 82
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed........... 82
SECTION 5.5. Notice of Redemption........................................ 83
SECTION 5.6. Deposit of Redemption Price................................. 84
SECTION 5.7. Securities Payable on Redemption Date....................... 84
SECTION 5.8. Securities Redeemed in Part................................. 84
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default........................................... 85
SECTION 6.2. Acceleration................................................ 87
SECTION 6.3. Other Remedies.............................................. 87
SECTION 6.4. Waiver of Past Defaults..................................... 88
SECTION 6.5. Control by Majority......................................... 88
SECTION 6.6. Limitation on Suits......................................... 88
SECTION 6.7. Rights of Holders to Receive Payment........................ 88
SECTION 6.8. Collection Suit by Trustee.................................. 89
SECTION 6.9. Trustee May File Proofs of Claim............................ 89
SECTION 6.10. Priorities................................................. 89
SECTION 6.11. Undertaking for Costs...................................... 89
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee........................................... 90
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SECTION 7.2. Rights of Trustee........................................... 91
SECTION 7.3. Individual Rights of Trustee................................ 92
SECTION 7.4. Trustee's Disclaimer........................................ 92
SECTION 7.5. Notice of Defaults.......................................... 92
SECTION 7.6. Reports by Trustee to Holders............................... 92
SECTION 7.7. Compensation and Indemnity.................................. 93
SECTION 7.8. Replacement of Trustee...................................... 94
SECTION 7.9. Successor Trustee by Merger................................. 94
SECTION 7.10. Eligibility; Disqualification.............................. 95
SECTION 7.11. Preferential Collection of Claims Against the Issuers...... 95
SECTION 7.12. Trustee's Application for Instruction from the Issuers..... 95
SECTION 7.13. Paying Agents.............................................. 95
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance............ 96
SECTION 8.2. Conditions to Defeasance.................................... 97
SECTION 8.3. Application of Trust Money.................................. 99
SECTION 8.4. Repayment to the Issuers.................................... 99
SECTION 8.5. Indemnity for U.S. Government Obligations................... 99
SECTION 8.6. Reinstatement............................................... 99
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders.................................. 100
SECTION 9.2. With Consent of Holders..................................... 101
SECTION 9.3. Compliance with Trust Indenture Act......................... 102
SECTION 9.4. Revocation and Effect of Consents and Waivers............... 102
SECTION 9.5. Notation on or Exchange of Securities....................... 102
SECTION 9.6. Trustee To Sign Amendments.................................. 103
ARTICLE X
SECURITIES GUARANTEE
SECTION 10.1. Subsidiary Guarantee....................................... 103
SECTION 10.2. Limitation on Liability; Termination, Release and
Discharge................................................ 105
SECTION 10.3. Right of Contribution...................................... 106
SECTION 10.4. No Subrogation............................................. 106
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls............................... 107
SECTION 11.2. Notices.................................................... 107
SECTION 11.3. Communication by Holders with other Holders................ 108
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SECTION 11.4. Certificate and Opinion as to Conditions Precedent......... 108
SECTION 11.5. Statements Required in Certificate or Opinion.............. 108
SECTION 11.6. When Securities Disregarded................................ 109
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar............... 109
SECTION 11.8. Legal Holidays............................................. 109
SECTION 11.9. GOVERNING LAW.............................................. 109
SECTION 11.10. No Recourse Against Others................................ 109
SECTION 11.11. Successors................................................ 109
SECTION 11.12. Multiple Originals........................................ 110
SECTION 11.13. Qualification of Indenture................................ 110
SECTION 11.14. Table of Contents; Headings............................... 110
EXHIBIT A Form of the Note
EXHIBIT B Form of Indenture Supplement to Add Subsidiary Guarantors
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ----------------
310(a)(1) ....................................... 7.10
(a)(2) ....................................... 7.10
(a)(3) ....................................... N.A.
(a)(4) ....................................... N.A.
(a)(5) ....................................... 7.10
(b) ....................................... 7.3; 7.8; 7.10
(c) ....................................... N.A.
311(a) ....................................... 7.11
(b) ....................................... 7.11
(c) ....................................... N.A.
312(a) ....................................... 2.5
(b) ....................................... 11.3
(c) ....................................... 11.3
313(a) ....................................... 7.6
(b)(1) ....................................... N.A.
(b)(2) ....................................... 7.6
(c) ....................................... 7.6
(d) ....................................... 7.6
314(a) ....................................... 3.10; 3.16; 11.5
(b) ....................................... N.A.
(c)(1) ....................................... 11.4
(c)(2) ....................................... 11.4
(c)(3) ....................................... N.A.
(d) ....................................... N.A.
(e) ....................................... 11.5
315(a) ....................................... 7.1
(b) ....................................... 7.5; 11.2
(c) ....................................... 7.1
(d) ....................................... 7.1
(e) ....................................... 6.11
316(a)(last sentence) ....................................... 11.6
(a)(1)(A) ....................................... 6.5
(a)(1)(B) ....................................... 6.4
(a)(2) ....................................... N.A.
(b) ....................................... N.A.
(c) ....................................... 6.5
317(a)(1) ....................................... 6.8
(a)(2) ....................................... 6.9
(b) ....................................... 2.4
318(a) ....................................... 11.1
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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INDENTURE dated as of July 6, 2006, among XXXXXXX & XXXXXXXXX LLC, a
Delaware limited liability company (the "Company"), XXXXXXX & XXXXXXXXX CORP., a
Delaware corporation (together with the Company, the "Issuers"), THE SUBSIDIARY
GUARANTORS (as defined herein) and Xxxxx Fargo Bank, National Association,
national banking association (the "Trustee"), as Trustee.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, each party hereto covenants and agrees as
follows for the benefit of the other parties and for the equal and ratable
benefit of all Holders of (i) the Issuers' 10% Senior Notes due 2014 issued on
the date hereof and the guarantees thereof by certain of the Issuers'
subsidiaries (the "Initial Securities"), (ii) if and when issued, an unlimited
principal amount of additional 10% Senior Notes due 2014 in a non-registered
offering or 10% Senior Notes due 2014 in a registered offering of the Issuers
and the guarantees thereof by certain of the Issuers' subsidiaries that may be
offered from time to time subsequent to the Issue Date (the "Additional
Securities") and (iii) if and when issued, the Additional Securities and the
guarantees thereof by certain of the Issuers' subsidiaries that may be issued
from time to time in exchange for Initial Securities or any Additional
Securities in an offer registered under the Securities Act as provided in a
Registration Rights Agreement (as hereinafter defined) (the "Exchange
Securities," and together with the Initial Securities and Additional Securities,
the "Securities").
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness (1) of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary or (2) assumed in connection with the acquisition of assets from such
Person, in each case whether or not Incurred by such Person in connection with,
or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to have
been Incurred, with respect to clause (1) of the preceding sentence, on the date
such Person becomes a Restricted Subsidiary and, with respect to clause (2) of
the preceding sentence, on the date of consummation of such acquisition of
assets.
"Additional Assets" means:
(1) any property, plant, equipment or other assets (excluding current
assets other than inventory) to be used by the Company or a
Restricted Subsidiary 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 a Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Subsidiary;
provided, however, that, in the case of clauses (2) and (3), such Restricted
Subsidiary is primarily engaged in a Related Business, and provided further that
for the purposes of determining fair market value of Additional Assets for the
purposes of clause (2)(c) of the first paragraph under Section 3.7, such fair
market value shall be determined conclusively by:
(1) the Company acting in good faith, if such fair market value is
estimated by the Company to be less than $5 million;
(2) the Board of Directors of the Company acting in good faith, whose
resolution with respect thereto shall be delivered to the
Trustee, if such fair market value is estimated by the Board of
Directors of the Company to be less than $20 million; and
(3) an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing, whose opinion or
appraisal with respect thereto shall be delivered to the Trustee,
if such fair market value is estimated in good faith by the Board
of Directors of the Company to exceed $20 million.
"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.
"Asset Disposition" means any direct or indirect sale, lease (other
than an operating lease entered into in the ordinary course of business),
transfer, issuance or other disposition, or a series of related sales, leases,
transfers, issuances or dispositions that are part of a common plan, of shares
of Capital Stock of a Subsidiary (other than directors' qualifying shares),
property or other assets (each referred to for the purposes of this definition
as a "disposition") by the Company or any of its Restricted Subsidiaries,
including any disposition by means of a merger, consolidation or similar
transaction.
Notwithstanding the preceding, the following items shall not be deemed
to be Asset Dispositions:
(1) a disposition of assets by a Restricted Subsidiary to the Company
or by the Company or a Restricted Subsidiary to a Restricted Subsidiary;
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(2) the sale of Cash Equivalents in the ordinary course of business;
(3) a disposition of inventory in the ordinary course of business;
(4) a disposition of obsolete or worn out equipment or equipment or
other personal property that is no longer useful in the conduct of the
business of the Company and its Restricted Subsidiaries and that is
disposed of in each case in the ordinary course of business;
(5) transactions permitted pursuant to Section 4.1 and Restricted
Payments permitted under Section 3.3 and Permitted Investments;
(6) an issuance of Capital Stock by a Restricted Subsidiary to the
Company or to a Restricted Subsidiary;
(7) for purposes of Section 3.7 only, the making of a Permitted
Investment (other than a Permitted Investment to the extent such
transaction results in the receipt of cash or Cash Equivalents by the
Company or its Restricted Subsidiaries) or a disposition subject to Section
3.3;
(8) dispositions of assets in a single transaction or series of
related transactions with an aggregate fair market value of less than $1.0
million;
(9) the creation of a Permitted Lien and dispositions in connection
with Permitted Liens;
(10) dispositions of receivables in connection with the compromise,
settlement or collection thereof in the ordinary course of business or in
bankruptcy or similar proceedings and exclusive of factoring or similar
arrangements;
(11) the issuance by a Restricted Subsidiary of Preferred Stock that
is permitted by Section 3.2;
(12) the licensing or sublicensing of intellectual property or other
general intangibles and licenses, leases or subleases of other property in
the ordinary course of business which do not materially interfere with the
business of the Company and its Restricted Subsidiaries; and
(13) foreclosure on assets.
"Attributable Indebtedness" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate implicit in the transaction) 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), determined in accordance with GAAP; provided, however, that if
such Sale/Leaseback Transaction results in a Capitalized Lease Obligation, the
amount of Indebtedness represented thereby will be determined in accordance with
the definition of "Capitalized Lease Obligations."
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"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (2) the sum of all such payments.
"Bankruptcy Law" means Title 11 of the United States Code or any
similar federal or state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors
or managers, as applicable, of such Person (or, if such Person is a partnership,
the board of directors or other governing body of the general partner of such
Person) or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of a Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Borrowing Base" means, as of the date of determination, an amount
equal to the sum, without duplication of (1) 85% of the net book value of the
Company's and its Restricted Subsidiaries' accounts receivable at such date and
(2) 70% of the net book value of the Company's and its Restricted Subsidiaries'
inventories at such date. Net book value shall be determined in accordance with
GAAP and shall be calculated using amounts reflected on the most recent
available balance sheet (it being understood that the accounts receivable and
inventories of an acquired business may be included if such acquisition has been
completed on or prior to the date of determination).
"Business Day" means each day that is not a Saturday, Sunday or other
day on which banking institutions in New York, New York are authorized or
required by law to close.
"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 and limited liability or partnership interests (whether general or
limited), but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation will be the capitalized amount of such obligation
at the time any determination thereof is to be made as determined in accordance
with GAAP, and the Stated Maturity thereof will be the date of the last payment
of rent or any other amount due under such lease prior to the first date such
lease may be terminated without penalty.
"Cash Equivalents" means:
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(1) securities issued or directly and fully guaranteed or insured by
the United States Government or any agency or instrumentality of the United
States (provided that the full faith and credit of the United States is
pledged in support thereof), having maturities of not more than one year
from the date of acquisition;
(2) marketable general obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition of the United States (provided that the full faith and credit
of the United States is pledged in support thereof) and, at the time of
acquisition, having a credit rating of "A" or better from either Standard &
Poor's Ratings Services or Xxxxx'x Investors Service, Inc.;
(3) certificates of deposit, time deposits, eurodollar time deposits,
overnight bank deposits or bankers' acceptances having maturities of not
more than one year from the date of acquisition thereof issued by any
commercial bank the long-term debt of which is rated at the time of
acquisition thereof at least "A" or the equivalent thereof by Standard &
Poor's Ratings Services, or "A" or the equivalent thereof by Xxxxx'x
Investors Service, Inc., and having combined capital and surplus in excess
of $500 million;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (1), (2) and (3)
entered into with any bank meeting the qualifications specified in clause
(3) above;
(5) commercial paper rated at the time of acquisition thereof at least
"A-2" or the equivalent thereof by Standard & Poor's Ratings Services or
"P-2" or the equivalent thereof by Xxxxx'x Investors Service, Inc., or
carrying an equivalent rating by a nationally recognized rating agency, if
both of the two named rating agencies cease publishing ratings of
investments, and in any case maturing within one year after the date of
acquisition thereof; and
(6) interests in any investment company or money market fund which
invests 95% or more of its assets in instruments of the type specified in
clauses (1) through (5) above.
"CFC" means a "controlled foreign corporation" within the meaning of
Section 957(a) of the Code.
"Change of Control" means:
(1) prior to the first public offering of Common Stock of the Company,
the Permitted Holders cease to be the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of a
majority in the aggregate of the total voting power of the Voting Stock of
the Company, whether as a result of the issuance of securities of the
Company, any merger, consolidation, liquidation or dissolution of the
Company, any direct or indirect transfer of securities by any Permitted
Holder or otherwise (for purposes of this clause (1) and clause (2) below,
the Permitted
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Holders shall be deemed to beneficially own any Voting Stock of an entity
(the "specified entity") held by any other entity (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 the parent entity); or
(2) on the date of or after the first public offering of Common Stock
referred to in clause (1), (A) any "person" or "group" of related persons
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such
person or group shall be deemed to have "beneficial ownership" of all
shares that any such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting power of the
Voting Stock of the Company (or its successor by merger, consolidation or
purchase of all or substantially all of its assets) (for the purposes of
this clause, such person or group shall be deemed to beneficially own any
Voting Stock of the Company held by a parent entity, if such person or
group "beneficially owns" (as defined above), directly or indirectly, more
than 35% of the voting power of the Voting Stock of such parent entity);
and (B) the Permitted Holders "beneficially own" (as defined in Rules 13d-3
and 13d-5 of the Exchange Act), directly or indirectly, in the aggregate a
lesser percentage of the total voting power of the Voting Stock of the
Company (or its successor by merger, consolidation or purchase of all or
substantially all of its assets) than such other person or group 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 the
Company or such successor (for the purposes of this clause, such other
person or group shall be deemed to beneficially own any Voting Stock of a
specified entity held by a parent entity, if such other person or group
"beneficially owns" directly or indirectly, more than 35% of the voting
power of the Voting Stock of such parent entity and the Permitted Holders
"beneficially own" 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); or
(3) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors; or
(4) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole to any "person" (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act) other than a
Permitted Holder; or
(5) the adoption by the stockholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
6
"Commodity Agreement" means any commodity futures contract, commodity
swap, commodity option or other similar agreement or arrangement entered into by
the Company or any Restricted Subsidiary designed to protect the Company or any
of its Restricted Subsidiaries against fluctuations in the price of commodities
actually used in the ordinary course of business of the Company and its
Restricted Subsidiaries.
"Common Stock" means with respect to any Person, any and all shares,
interest or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of such Person's common stock whether or not
outstanding on the Issue Date, and includes, without limitation, all series and
classes of such common stock.
"Consolidated Coverage Ratio" means as of any date of determination,
with respect to any Person, the ratio of (x) the aggregate amount of
Consolidated EBITDA of such Person for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for
which financial statements are in existence to (y) Consolidated Interest Expense
for such four fiscal quarters, provided, however, that:
(1) if the Company or any Restricted Subsidiary:
(a) has Incurred any Indebtedness since the beginning of such
period that remains outstanding on such date of
determination or if the transaction giving rise to the need
to calculate the Consolidated Coverage Ratio is an
Incurrence of Indebtedness, Consolidated EBITDA and
Consolidated Interest Expense for such period will 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 (except that in making such
computation, the amount of Indebtedness under any revolving
credit facility outstanding on the date of such calculation
will be deemed to be (i) the average daily balance of such
Indebtedness during such four fiscal quarters or such
shorter period for which such facility was outstanding or
(ii) if such facility was created after the end of such four
fiscal quarters, the average daily balance of such
Indebtedness during the period from the date of creation of
such facility to the date of such calculation) and the
discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such
new Indebtedness as if such discharge had occurred on the
first day of such period; or
(b) has repaid, repurchased, defeased or otherwise discharged
any Indebtedness since the beginning of the period that is
no longer outstanding on such date of determination or if
the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio involves a discharge of
Indebtedness (in each case other than Indebtedness Incurred
under any revolving credit facility unless such Indebtedness
has been permanently repaid and the related commitment
terminated), Consolidated EBITDA and Consolidated
7
Interest Expense for such period will be calculated after
giving effect on a pro forma basis to such discharge of such
Indebtedness, including with the proceeds of such new
Indebtedness, as if such discharge had occurred on the first
day of such period;
(2) if since the beginning of such period the Company or any
Restricted Subsidiary will have made any Asset Disposition or
disposed of any company, division, operating unit, segment,
business, group of related assets or line of business:
(a) the Consolidated EBITDA for such period will be reduced by
an amount equal to the Consolidated EBITDA (if positive)
directly attributable to the assets which are the subject of
such disposition for such period or increased by an amount
equal to the Consolidated EBITDA (if negative) directly
attributable thereto for such period; and
(b) Consolidated Interest Expense for such period will 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 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 Company and its continuing Restricted Subsidiaries are
no longer liable for such Indebtedness after such sale);
(3) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) will have made an
Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary or is merged with or into the
Company) or an acquisition of assets, including any acquisition
of assets occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or
substantially all of a company, division, operating unit,
segment, business, group of related assets or line of business,
Consolidated EBITDA and Consolidated Interest Expense for such
period will 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
(4) 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) will have Incurred any Indebtedness or discharged
any Indebtedness, made any disposition or any Investment or
acquisition of assets that would have
8
required an adjustment pursuant to clause (1), (2) or (3) above
if made by the Company or a Restricted Subsidiary during such
period, Consolidated EBITDA and Consolidated Interest Expense for
such period will be calculated after giving pro forma effect
thereto as if such transaction occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to be given to any
calculation under this definition, the pro forma calculations will be determined
in good faith by a responsible financial or accounting officer of the Company
(including pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Securities Act). If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness will 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). If any Indebtedness that is being given pro forma effect bears an
interest rate at the option of the Company, the interest rate shall be
calculated by applying such optional rate chosen by the Company.
"Consolidated EBITDA" for any period means, without duplication, the
Consolidated Net Income for such period, plus the following to the extent
deducted in calculating such Consolidated Net Income:
(1) Consolidated Interest Expense; plus
(2) Consolidated Income Taxes; plus
(3) consolidated depreciation expense; plus
(4) consolidated amortization expense or impairment charges recorded
in connection with the application of Financial Accounting
Standard No. 142 "Goodwill and Other Intangibles" and Financial
Accounting Standard No. 144 "Accounting for the Impairment or
Disposal of Long Lived Assets;" plus
(5) other non-cash charges reducing Consolidated Net Income
(excluding any such non-cash charge to the extent it represents
an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior
period not included in the calculation); plus
(6) the amount of any restructuring charges or reserves (which, for
the avoidance of doubt, shall include severance contract
termination costs, including future lease commitments, costs to
consolidate facilities and costs to relocate employees); plus
(7) expenses and charges resulting from the acquisition by the
Company on January 23, 2006 of substantially all of the
equipment, aftermarket parts
9
and service, and equipment rental businesses that primarily
served the oil and gas services industry of Xxxxxxx & Xxxxxxxxx
Services, Inc. and its affiliates, the initial establishment of
the senior credit facility, the offering of the Initial
Securities, and any concurrent amendment to the senior credit
facility; less
(8) non-cash items increasing Consolidated Net Income of such Person
for such period (excluding any items which represent the reversal
of any accrual of, or reserve for, anticipated cash charges made
in any prior period).
Notwithstanding the preceding sentence, clauses (2) through (8) relating to
amounts of a Restricted Subsidiary of a Person will be added to Consolidated Net
Income to compute Consolidated EBITDA of such Person only to the extent (and in
the same proportion) that the net income (loss) of such Restricted Subsidiary
was included in calculating the Consolidated Net Income of such Person and, to
the extent the amounts set forth in clauses (2) through (8) are in excess of
those necessary to offset a net loss of such Restricted Subsidiary or if such
non-guarantor Restricted Subsidiary has net income for such period included in
Consolidated Net Income, only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such non-guarantor
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 that
non-guarantor Restricted Subsidiary or its stockholders.
"Consolidated Income Taxes" means, with respect to any Person for any
period, taxes imposed upon such Person or other payments required to be made by
such Person by any governmental authority which taxes or other payments are
calculated by reference to the income or profits of such Person or such Person
and its Restricted Subsidiaries (to the extent such income or profits were
included in computing Consolidated Net Income for such period), regardless of
whether such taxes or payments are required to be remitted to any governmental
authority plus any Tax Distributions taken into account in calculating
Consolidated Net Income.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
whether paid or accrued, plus, to the extent not included in such interest
expense:
(1) interest expense attributable to Capitalized Lease Obligations
and the interest portion of rent expense associated with
Attributable Indebtedness in respect of the relevant lease giving
rise thereto, determined as if such lease were a capitalized
lease in accordance with GAAP and the interest component of any
deferred payment obligations;
(2) amortization of debt discount and debt issuance cost; provided,
however, that any amortization of bond premium will be credited
to reduce Consolidated Interest Expense unless, pursuant to GAAP,
such amortization of bond premium has otherwise reduced
Consolidated Interest Expense;
10
(3) non-cash interest expense;
(4) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
(5) interest actually paid by the Company or any Restricted
Subsidiary under any Guarantee of Indebtedness or other
obligation of any other Person;
(6) net costs associated with Hedging Obligations (including
amortization of fees) provided, however, that if Hedging
Obligations result in net benefits rather than net costs, such
benefits shall be credited to reduce Consolidated Interest
Expense unless, pursuant to GAAP, such net benefits are otherwise
reflected in Consolidated Net Income;
(7) the consolidated interest expense of the Company and its
Restricted Subsidiaries that was capitalized during such period;
(8) the product of (a) all dividends paid, in cash, Cash Equivalents
or Indebtedness during such period on any series of Disqualified
Stock of the Company or on Preferred Stock of its Restricted
Subsidiaries that are not Subsidiary Guarantors payable to a
party other than the Company or a Restricted Subsidiary, times
(b) a fraction, the numerator of which is one and the denominator
of which is one minus the then current combined federal, state,
provincial and local statutory tax rate of the Company, expressed
as a decimal, in each case, on a consolidated basis and in
accordance with GAAP; and
(9) 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 and its Restricted Subsidiaries) in connection with
Indebtedness Incurred by such plan or trust.
For the purpose of calculating the Consolidated Coverage Ratio, the calculation
of Consolidated Interest Expense shall include all interest expense (including
any amounts described in clauses (1) through (9) above) relating to any
Indebtedness of the Company or any Restricted Subsidiary described in the final
paragraph of the definition of "Indebtedness."
For purposes of the foregoing, total interest expense will be
determined (i) after giving effect to any net payments made or received by the
Company and its Subsidiaries with respect to Interest Rate Agreements and (ii)
exclusive of amounts classified as other comprehensive income in the balance
sheet of the Company. Notwithstanding anything to the contrary contained herein,
commissions, discounts, yield and other fees and charges Incurred in connection
with any transaction pursuant to which the Company or its Restricted
Subsidiaries may sell, convey or otherwise transfer or grant a security interest
in any accounts receivable or related assets shall be included in Consolidated
Interest Expense.
11
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its consolidated Restricted Subsidiaries determined in
accordance with GAAP; provided, however, that there will not be included in such
Consolidated Net Income:
(1) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that:
(a) subject to the limitations contained in clauses (3), (4) and
(5) below, the Company's equity in the net income of any
such Person for such period will 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 a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or
other distribution to a Restricted Subsidiary, to the
limitations contained in clause (2) below); and
(b) the Company's equity in a net loss of any such Person (other
than an Unrestricted Subsidiary) for such period will be
included in determining such Consolidated Net Income to the
extent such loss has been funded with cash from the Company
or a Restricted Subsidiary;
(2) any net income (but not loss) of any Restricted Subsidiary if
such 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, except that:
(a) subject to the limitations contained in clauses (3), (4) and
(5) below, the Company's equity in the net income of any
such Restricted Subsidiary for such period will be included
in such Consolidated Net Income up to the aggregate amount
of cash that could have been distributed by such Restricted
Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend (subject, in the case of
a dividend 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 will be included in determining
such Consolidated Net Income;
(3) any gain (loss) realized upon the sale or other disposition of
any property, plant or equipment of the Company or its
consolidated Restricted Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) which is not sold or otherwise
disposed of in the ordinary course of business, or abandonment or
reserves relating thereto, and any gain (loss) realized upon the
sale or other disposition of any Capital Stock of any Person;
12
(4) any extraordinary gain or loss; and
(5) the cumulative effect of a change in accounting principles; and
provided further that an amount equal to the amount of Tax Distributions
actually made to the holders of Capital Stock of the Company or any parent
company of the Company in respect of such period in accordance with clause (9)
of the second paragraph under Section 3.3 shall be reflected in Consolidated Net
Income as though such amounts had been paid as income taxes directly by the
Company for such period.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who: (1) was a member of such
Board of Directors on the Issue Date; or (2) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Credit Facility" means, with respect to the Company or any Subsidiary
Guarantor, one or more debt facilities (including, without limitation, the
senior credit facility or commercial paper facilities with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time
(and whether or not with the original administrative agent and lenders or
another administrative agent or agents or other lenders and whether provided
under the original senior credit facility or any other credit or other agreement
or indenture).
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement, futures contract, option contract or other
similar agreement as to which such Person is a party or a beneficiary.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable) or upon the happening
of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
13
(2) is convertible or exchangeable for Indebtedness or Disqualified
Stock (excluding Capital Stock which is convertible or
exchangeable solely at the option of the Company or a Restricted
Subsidiary); or
(3) is redeemable at the option of the holder of the Capital Stock in
whole or in part,
in each case on or prior to the date that is 91 days after the earlier of the
date (a) of the Stated Maturity of the Securities or (b) on which there are no
Securities outstanding, provided that only the portion of Capital Stock which so
matures or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such date will be deemed
to be Disqualified Stock; provided, further that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a
change of control or asset sale or disposition (each defined in a substantially
identical manner to the corresponding definitions in this Indenture) shall not
constitute Disqualified Stock if the terms of such Capital Stock (and all such
securities into which it is convertible or for which it is ratable or
exchangeable) provide that the Company may not repurchase or redeem any such
Capital Stock (and all such securities into which it is convertible or for which
it is ratable or exchangeable) pursuant to such provision prior to compliance by
the Issuers with the provisions of this Indenture described under Section 3.9
and by the Company with the provisions of this Indenture described under Section
3.7; and such repurchase or redemption complies with Section 3.3.
"Domestic Subsidiary" means any Restricted Subsidiary that (1) is
organized under the laws of the United States of America or any state thereof or
the District of Columbia and (2) a guaranty of the Securities by such Subsidiary
would not result in that Subsidiary holding "United States property" within the
meaning of Treasury Regulations Section 1.956-2(c).
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Equity Offering" means a public offering for cash by the Company of
its Common Stock, or options, warrants or rights with respect to its Common
Stock, other than (w) public offerings with respect to the Company's Common
Stock, or options, warrants or rights, registered on Form S-4 or S-8, (x) any
public sale constituting an Excluded Contribution, (y) an issuance to any
Subsidiary or (z) any offering of Common Stock issued in connection with a
transaction that constitutes a Change of Control.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Excluded Contribution" means net cash proceeds, marketable securities
or Additional Assets received by the Company from:
14
(1) contributions to its common equity capital; and
(2) the sale (other than to a Subsidiary of the Company or to any
management equity plan or stock option plan or any other
management or employee benefit plan or agreement of the Company)
of Capital Stock (other than Disqualified Stock) of the Company;
in each case designated as Excluded Contributions pursuant to an Officers'
Certificate on the date such capital contributions are made or the date such
Capital Stock is sold, as the case may be, which are excluded from the
calculation set forth in clause (c)(ii) contained in the first paragraph of
Section 3.3.
"Flow Through Entity" means an entity that is treated as a partnership
not taxable as a corporation, a grantor trust or a disregarded entity for U.S.
federal income tax purposes or subject to treatment on a comparable basis for
purposes of state, local or foreign tax law.
"Foreign Subsidiary" means any Restricted Subsidiary that is not a
Domestic Subsidiary.
"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 the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
this Indenture will be computed in conformity with GAAP, except that in the
event the Company is acquired in a transaction that is accounted for using
purchase accounting, the effects of the application of purchase accounting shall
be disregarded in the calculation of such ratios and other computations
contained in this Indenture.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other 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 other Person (whether
arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay, to maintain financial statement conditions or
otherwise); or
(2) entered into for purposes 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); provided, however, that the term "Guarantee" will not
include endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
15
"Guarantor Pari Passu Indebtedness" means Indebtedness of a Subsidiary
Guarantor that ranks equally in right of payment to its Subsidiary Guarantee.
"Guarantor Subordinated Obligation" means, with respect to a
Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) which is expressly
subordinated in right of payment to the obligations of such Subsidiary Guarantor
under its Subsidiary Guarantee pursuant to a written agreement.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity
Agreement.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered on the Registrar's books.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Incur" means issue, create, 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) will be deemed to
be Incurred by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary; and the terms "Incurred" and "Incurrence" have meanings correlative
to the foregoing.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any and only to the extent then
due) in respect of indebtedness of such Person for borrowed
money;
(2) the principal of and premium (if any and only to the extent then
due) in respect of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) the principal component of all obligations of such Person in
respect of letters of credit, bankers' acceptances or other
similar instruments (including reimbursement obligations with
respect thereto except to the extent such reimbursement
obligation relates to a trade payable and such obligation is
satisfied within 30 days of Incurrence);
(4) the principal component of all obligations of such Person to pay
the deferred and unpaid purchase price of property (except trade
payables), to the extent such purchase price is due more than six
months after the date of placing such property in service or
taking delivery and title thereto;
(5) Capitalized Lease Obligations and all Attributable Indebtedness
of such Person;
16
(6) the principal component or liquidation preference of all
obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or, with
respect to any Restricted Subsidiary that is not a Subsidiary
Guarantor, any Preferred Stock (but excluding, in each case, any
accrued dividends);
(7) the principal component of all Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person; provided, however,
that the amount of such Indebtedness will be the lesser of (a)
the fair market value of such asset at such date of determination
and (b) the amount of such Indebtedness of such other Persons;
(8) the principal component of Indebtedness of other Persons to the
extent Guaranteed by such Person;
(9) to the extent not otherwise included in this definition, net
obligations of such Person under Hedging Obligations (the amount
of any such obligations to be equal at any time to the
termination value of such agreement or arrangement giving rise to
such obligation that would be payable by such Person at such
time); and
(10) to the extent not otherwise included in this definition, the
amount of obligations outstanding under the legal documents
entered into as part of a securitization transaction or series of
transactions that would be characterized as principal if such
transaction were structured as a secured lending transaction
rather than as a purchase.
The amount of Indebtedness of any Person at any date will 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. Notwithstanding the
foregoing, money borrowed and set aside at the time of the Incurrence of any
Indebtedness in order to pre-fund the payment of interest on such Indebtedness
shall not be deemed to be "Indebtedness" provided that such money is held to
secure the payment of such interest.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Initial Purchaser" means X.X. Xxxxxx Securities Inc., with respect to
the Initial Securities.
"Initial Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge
17
agreement or other similar agreement or arrangement as to which such Person is
party or a beneficiary.
"Investment" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of any direct or
indirect advance, loan (other than accounts receivable, trade credit or other
advances or extensions of credit to customers in the ordinary course of
business) or other extensions of credit (including by way of Guarantee or
similar arrangement, but excluding any debt or extension of credit represented
by a bank deposit other than a time deposit) 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 and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided that
none of the following will be deemed to be an Investment:
(1) Hedging Obligations entered into in the ordinary course of
business and in compliance with this Indenture;
(2) endorsements of negotiable instruments and documents in the
ordinary course of business; and
(3) an acquisition of assets, Capital Stock or other securities by
the Company or a Subsidiary for consideration to the extent such
consideration consists of Common Stock of the Company.
If the Company or any Restricted Subsidiary sells or otherwise
disposes of any Voting Stock of any Restricted Subsidiary such that, after
giving effect to any such sale or disposition, such entity is no longer a
Restricted Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the fair
market value (as conclusively determined by the Board of Directors of the
Company in good faith) of the Capital Stock of such subsidiary not sold or
disposed of.
For purposes of Section 3.3,
(1) "Investment" will include the portion (proportionate to the
Company's equity interest in a Restricted Subsidiary to be
designated as an Unrestricted Subsidiary) of the fair market
value of the net assets of such Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company will be deemed
to continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (a) the Company's
"Investment" in such Subsidiary at the time of such redesignation
less (b) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net
assets (as conclusively determined by the Board of Directors of
the Company in
18
good faith) of such Subsidiary at the time that such Subsidiary
is so re-designated a Restricted Subsidiary; and
(2) any property transferred to or from an Unrestricted Subsidiary
will 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 of the Company.
"Issue Date" means the closing date for the sale and issuance of the
Initial Securities.
"Legal Holiday" has the meaning ascribed to it in Section 11.8.
"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).
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and net
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 the properties or assets that are
the subject of such Asset Disposition or received in any other non-cash form)
therefrom, in each case net of:
(1) all legal, accounting, investment banking, title and recording
tax expenses, commissions and other fees and expenses Incurred,
and all Federal, state, provincial, foreign and local taxes
required to be paid or accrued as a liability under GAAP (after
taking into account any available tax credits or deductions and
any tax sharing agreements), 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 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 Subsidiaries or joint ventures as a
result of such Asset Disposition; and
(4) the deduction of appropriate amounts to be provided by the seller
as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in such Asset Disposition
and retained by the Company or any Restricted Subsidiary after
such Asset Disposition.
19
"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, listing fees,
discounts or commissions and brokerage, consultant and other fees and charges
actually Incurred in connection with such issuance or sale and net of taxes paid
or payable as a result of such issuance or sale (after taking into account any
available tax credit or deductions and any tax sharing arrangements).
"Non-Guarantor Restricted Subsidiary" means any Restricted Subsidiary
that is not a Subsidiary Guarantor.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any Restricted Subsidiary (a)
provides any Guarantee or credit support of any kind (including
any undertaking, guarantee, indemnity, agreement or instrument
that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise);
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time
or both) any holder of any other Indebtedness of the Company or
any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity; and
(3) the explicit terms of which provide there is no recourse against
any of the assets of the Company or its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person (as defined
in Regulation S).
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President, the
Treasurer or the Secretary of the Company, or, in the event that the Company has
no such officers, a person duly authorized under applicable law by the managers,
members or a similar body to act on behalf of the Company. Officer of any
Subsidiary Guarantor has a correlative meaning.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company.
"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
either of the Issuers or the Trustee.
"Pari Passu Indebtedness" means Indebtedness that ranks equally in
right of payment to the Securities.
20
"Permitted Holders" means Mr. Xxxxxxx Xxxxxx, his family members or
Persons in which all Capital Stock and other equity interests in such Persons
are owned solely or otherwise controlled by Mr. Xxxxxxx Xxxxxx and/or members of
his family. Notwithstanding the foregoing sentence, any person or group whose
acquisition of beneficial ownership constitutes a Change of Control in respect
of which a Change of Control Offer is made in accordance with the requirements
of this Indenture (or would result in a Change of Control Offer in the absence
of the waiver of such requirement by Holders in accordance with this Indenture)
will thereafter, together with any of its Affiliates and Related Persons,
constitute additional Permitted Holders.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in:
(1) a Restricted Subsidiary or a Person which will, upon the making
of, or in connection with, such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such
Restricted Subsidiary is a Related Business;
(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 Cash Equivalents;
(4) receivables owing to the Company or any Restricted Subsidiary
created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade
terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances;
(5) payroll, travel 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, officers or directors of the
Company or any Restricted Subsidiary of the Company in the
ordinary course of business consistent with past practices, in an
aggregate amount outstanding at any one time not in excess of
$0.5 million with respect to all loans or advances made since the
Issue Date (without giving effect to the forgiveness of any such
loan); provided, however, that the Company and its Subsidiaries
shall comply in all material respects with applicable law;
(7) Capital Stock, obligations or securities received in settlement
of debts created in the ordinary course of business and owing to
the Company or
21
any Restricted Subsidiary or in satisfaction of judgments or
pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of a debtor;
(8) Investments made as a result of the receipt of non-cash
consideration from an Asset Disposition that was made pursuant to
and in compliance with Section 3.7;
(9) Investments in existence on the Issue Date;
(10) Currency Agreements, Interest Rate Agreements, Commodity
Agreements and related Hedging Obligations, which transactions or
obligations are Incurred in compliance with Section 3.2;
(11) Investments by the Company or any of its Restricted Subsidiaries,
together with all other Investments pursuant to this clause (11),
in an aggregate amount at the time of such Investment not to
exceed $10 million outstanding at any one time (with the fair
market value of such Investment being measured at the time made
and without giving effect to subsequent changes in value);
(12) Guarantees issued in accordance with Section 3.2; and
(13) any asset acquired pursuant to an Asset Disposition in accordance
with Section 3.7.
"Permitted Liens" means, with respect to any Person:
(1) Liens securing Indebtedness and other obligations under the
senior credit facility and related Hedging Obligations and liens
on assets of Restricted Subsidiaries securing Guarantees of
Indebtedness and other obligations of the Company under the
senior credit facility permitted to be Incurred under this
Indenture under the provisions described in clause (1) of the
second paragraph under Section 3.2;
(2) pledges or deposits by such Person under workers' compensation,
unemployment insurance or similar legislation or regulation, or
good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which
such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States
government bonds to secure surety performance or appeal bonds to
which such Person is a party, or deposits securing liability for
reimbursement or indemnification obligations of (including
obligations in respect of letters of credit, bank guarantees or
similar instruments for the benefit of) insurance carriers
providing property, casualty or liability insurance, or deposits
as security for contested taxes or import or customs duties or
for the payment of rent, and
22
deposits securing other obligations of a like nature, in each
case Incurred in the ordinary course of business;
(3) Liens imposed by law, including carriers', warehousemen's,
mechanics', materialmen's, landlord's, vendors, and repairmen's
Liens, in each case for sums not over due by 30 days or being
contested in good faith by appropriate proceedings if a reserve
or other appropriate provisions, if any, as shall be required by
GAAP shall have been made in respect thereof;
(4) Liens for taxes, assessments or other governmental charges not
yet subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings provided
appropriate reserves required pursuant to GAAP have been made in
respect thereof;
(5) Liens in favor of issuers of surety or performance bonds or
letters of credit or bankers' acceptances issued pursuant to the
request of and for the account of such Person in the ordinary
course of its business; provided, however, that such letters of
credit do not constitute Indebtedness;
(6) ground leases, easements, encroachments, protusions, or
reservations of, or rights of others for, licenses, rights of
way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning, restrictive covenants,
building codes or other restrictions and encumbrances (including,
without limitation, minor defects or irregularities in title and
similar encumbrances any other defects and encumbrances noted and
disclosed in title insurance policies issued for the account of
the Company or any Restricted Subsidiary and any state of facts
disclosed on any survey referenced in any such title policies and
any replacement, extension or renewal of any such lien) as to the
use of real properties or liens incidental to the conduct of the
business of such Person or to the ownership of its properties
which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the
operation of the business of such Person;
(7) Liens securing Hedging Obligations so long as the related
Indebtedness is, and is permitted to be under this Indenture,
secured by a Lien on the same property securing such Hedging
Obligation;
(8) leases, licenses, subleases and sublicenses of assets (including,
without limitation, real property and intellectual property
rights) which do not materially interfere with the ordinary
conduct of the business of the Company or any of its Restricted
Subsidiaries;
(9) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of
such judgment have not been
23
finally terminated or the period within which such proceedings
may be initiated has not expired;
(10) Liens for the purpose of securing Indebtedness represented by
Capitalized Lease Obligations, mortgage financings, purchase
money obligations or other payments Incurred to finance all or
any part of the purchase price or cost of construction or
improvement of assets or property (other than Capital Stock or
other Investments), including without limitation, inventory
acquired, constructed or improved in the ordinary course of
business; provided that:
(a) the aggregate principal amount of Indebtedness secured by
such Liens is otherwise permitted to be Incurred under this
Indenture and does not exceed the cost of the assets or
property so acquired, constructed or improved; and
(b) such Liens are created within 180 days of construction,
acquisition or improvement of such assets or property and do
not encumber any other assets or property of the Company or
any Restricted Subsidiary other than such assets or property
and assets affixed or appurtenant thereto;
(11) Liens arising solely by virtue of any statutory or common law
provisions relating to banker's Liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with a depositary institution; provided that:
(a) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by
the Company in excess of those set forth by regulations
promulgated by the Federal Reserve Board; and
(b) such deposit account is not intended by the Company or any
Restricted Subsidiary to provide collateral to the
depository institution;
(12) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Company
and its Restricted Subsidiaries in the ordinary course of
business;
(13) Liens existing on the Issue Date (other than Liens permitted
under clause (1) above);
(14) Liens on property or shares of stock of a Person at the time such
Person becomes a Restricted Subsidiary; provided, however, that
such Liens are not created, Incurred or assumed in connection
with, or in contemplation of, such other Person becoming a
Restricted Subsidiary; provided further,
24
however, that any such Lien may not extend to any other property
owned by the Company or any Restricted Subsidiary;
(15) Liens on property at the time the Company or a Restricted
Subsidiary acquired the property, including any acquisition by
means of a merger or consolidation with or into the Company or
any Restricted Subsidiary; provided, however, that such Liens are
not created, Incurred or assumed in connection with, or in
contemplation of, such acquisition; provided further, however,
that such Liens may not extend to any other property owned by the
Company or any Restricted Subsidiary;
(16) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Company or a Wholly-Owned Subsidiary;
(17) Liens securing the Securities and Subsidiary Guarantees;
(18) Liens securing Refinancing Indebtedness Incurred to refinance,
refund, replace, amend, extend or modify, as a whole or in part,
Indebtedness that was previously so secured pursuant to clauses
(10), (13), (14), (15), (17) and (18) of this definition,
provided that any such Lien is limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured (or,
under the written arrangements under which the original Lien
arose, could secure) the Indebtedness being refinanced or is in
respect of property that is the security for a Permitted Lien
hereunder;
(19) any leasehold interest or title of a lessor or sublessor under
any Capitalized Lease Obligation or operating lease;
(20) Liens under industrial revenue, municipal or similar bonds;
(21) any interest of a consignor in goods held by the Company or any
Restricted Subsidiary on consignment provided that such goods are
held on consignment in the ordinary course of business; and
(22) Liens solely on any xxxx xxxxxxx money deposits made by the
Company or any Restricted Subsidiary in connection with any
letter of intent or purchase agreement with respect to the
purchase of assets or property the Company or a Restricted
Subsidiary which is permitted by this Indenture.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity.
"Preferred Stock," as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or
25
dissolution of such corporation, over shares of Capital Stock of any other class
of such corporation.
"Presumed Tax Rate" means the highest effective marginal statutory
combined U.S. federal, state and local income tax return prescribed for an
individual residing in New York City (taking into account (i) the deductibility
of state and local income taxes for U.S. federal income tax purposes, assuming
the limitation of Section 68(a) of the Code applies and taking into account any
impact of Section 68(f) of the Code, and (ii) the character (long-term or
short-term capital gain, dividend income or other ordinary income) of the
applicable income).
"QIB" means any "qualified institutional buyer" as such term is
defined in Rule 144A.
"Rating Agencies" means Standard & Poor's Ratings Group, Inc. and
Xxxxx'x Investors Service, Inc. or if Standard & Poor's Ratings Group, Inc. or
Xxxxx'x Investors Service, Inc. or both shall not make a rating on the notes
publicly available, a nationally recognized statistical rating agency or
agencies, as the case may be, selected by the Company (as certified by a
resolution of the Board of Directors) which shall be substituted for Standard &
Poor's Ratings Group, Inc. or Xxxxx'x Investors Service, Inc. or both, as the
case may be.
"Redemption Date" means, with respect to any redemption of Securities,
the date of redemption with respect thereto.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, exchange, renew, repay or extend (including pursuant
to any defeasance or discharge mechanism) (collectively, "refinance;"
"refinances," and "refinanced" shall each have a correlative meaning) any
Indebtedness existing on the Issue Date or Incurred in compliance with this
Indenture (including Indebtedness of the Company that refinances Indebtedness of
any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that
refinances Indebtedness of another Restricted Subsidiary) including Indebtedness
that refinances Refinancing Indebtedness, provided, however, that:
(1) (a) if the Stated Maturity of the Indebtedness being refinanced
is earlier than the Stated Maturity of the Securities, the
Refinancing Indebtedness has a Stated Maturity no earlier than
the Stated Maturity of the Indebtedness being refinanced or (b)
if the Stated Maturity of the Indebtedness being refinanced is
later than the Stated Maturity of the Securities, the Refinancing
Indebtedness has a Stated Maturity at least 91 days later than
the Stated Maturity of the Securities;
(2) the 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;
(3) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the sum of
the aggregate principal amount (or
26
if issued with original issue discount, the aggregate accreted
value) then outstanding of the Indebtedness being refinanced
(plus, without duplication, any additional Indebtedness Incurred
to pay interest or premiums required by the instruments governing
such existing Indebtedness and fees Incurred in connection
therewith); and
(4) if the Indebtedness being refinanced is subordinated in right of
payment to the Securities or the Subsidiary Guarantee, such
Refinancing Indebtedness is subordinated in right of payment to
the Securities or the Subsidiary Guarantee on terms at least as
favorable to the Holders as those contained in the documentation
governing the Indebtedness being refinanced.
"Registered Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a registration
statement with respect to such Securities has become effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such registration statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"Registration Rights Agreement" means that certain registration rights
agreement dated as of the Issue Date by and among the Issuers, the Subsidiary
Guarantors and the Initial Purchaser set forth therein and, with respect to any
Additional Securities, one or more substantially similar registration rights
agreements among the Issuers and the other parties thereto, as such agreements
may be amended from time to time.
"Related Business" means any business which is the same as or related,
ancillary or complementary to, or a reasonable extension of, any of the
businesses of the Company and its Restricted Subsidiaries on the Issue Date.
"Related Business Assets" means assets used or useful in a Related
Business.
"Related Person" with respect to any Permitted Holder means:
(1) any controlling stockholder or a majority (or more) owned
Subsidiary of such Permitted Holder or, in the case of an
individual, any spouse or immediate family member of such
Permitted Holder, any trust created for the benefit of such
individual or such individual's estate, executor, administrator,
committee or beneficiaries; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons
beneficially holding a majority (or more) controlling interest of
which consist of such Permitted Holder and/or such other Persons
referred to in the immediately preceding clause (1).
27
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Period", with respect to any Securities, means the period
of 40 consecutive days beginning on and including the later of (A) the day on
which the Securities are first offered to Persons other than distributors (as
defined in Regulation S), notice of which day shall be promptly given by the
Company to the Trustee, and (B) the issue date with respect to such Securities.
"Restricted Securities Legend" means the Private Placement Legend set
forth in Section 2.1(d)(A) or the Regulation S Legend set forth in Section
2.1(d)(B), as applicable.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired 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 United States Securities and Exchange Commission.
"Securities" has the meaning ascribed to it in the second introductory
paragraph of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the custodian with respect to the Global
Securities (as defined below) (as appointed by DTC), or any successor Person
thereto and shall initially be the Trustee.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers and the Subsidiary Guarantors that covers all or a
portion of the Registrable Securities (but no other securities unless approved
by a majority of the Holders whose Registrable Securities are to be covered by
such "shelf" registration statement) on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document
incorporated by reference therein.
"senior credit facility" means the Amended and Restated Credit
Agreement dated as of July 6, 2006 among the Company, certain other borrowers
named therein, JPMorgan Chase Bank, N.A., as Administrative Agent, and the
lenders parties thereto from time to time, as the same may be amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time (including increasing the amount loaned thereunder provided that
such additional Indebtedness is Incurred in accordance with Section 3.2);
provided that a senior credit facility shall not (x) include Indebtedness
issued, created or Incurred pursuant to a registered
28
offering of securities under the Securities Act or a private placement of
securities (including under Rule 144A or Regulation S) pursuant to an exemption
from the registration requirements of the Securities Act or (y) relate to
Indebtedness that does not consist exclusively of Pari Passu Indebtedness or
Guarantor Pari Passu Indebtedness.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to repay,
redeem or repurchase any such principal prior to the date originally scheduled
for the payment thereof.
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinated or junior in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" of any Person means (a) any corporation, association or
other business entity (other than a partnership, joint venture, limited
liability company or similar entity) of which more than 50% of the total
ordinary voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof (or persons performing similar functions) or (b) any
partnership, joint venture, limited liability company or similar entity of which
more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general or limited partnership interests, as applicable, is,
in the case of clauses (a) and (b), 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. Unless otherwise
specified herein, each reference to a Subsidiary will refer to a Subsidiary of
the Company.
"Subsidiary Guarantee" means, individually, any Guarantee of payment
of the Securities and Exchange Securities issued in a registered exchange offer
pursuant to the Registration Rights Agreement by a Subsidiary Guarantor pursuant
to the terms of this Indenture and any supplemental indenture thereto, and,
collectively, all such Guarantees.
"Subsidiary Guarantor" means each Domestic Subsidiary or Foreign
Subsidiary that is neither a CFC nor directly or indirectly owned by a CFC in
existence on the Issue Date that provides a Subsidiary Guarantee on the Issue
Date (and any other Domestic Subsidiary or Foreign Subsidiary that is neither a
CFC nor directly or indirectly owned by a CFC that provides a Subsidiary
Guarantee in accordance with this Indenture); provided that upon release or
discharge of such Subsidiary from its Subsidiary Guarantee in accordance with
this Indenture, such Subsidiary ceases to be a Subsidiary Guarantor.
"Tax Distributions" means any distributions described in clause (9) of
the second paragraph of Section 3.3.
29
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this Indenture.
"Trust Officer" shall mean, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant treasurer, trust officer or any
other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"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 of the Company in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of the
Company (including any newly acquired or newly formed Subsidiary or a Person
becoming a Subsidiary through merger or consolidation or Investment therein) to
be an Unrestricted Subsidiary only if:
(1) such Subsidiary or any of its Subsidiaries does not own any
Capital Stock or Indebtedness of or have any Investment in, or
own or hold any Lien on any property of, any other Subsidiary of
the Company which is not a Subsidiary of the Subsidiary to be so
designated or otherwise an Unrestricted Subsidiary;
(2) all the Indebtedness of such Subsidiary and its Subsidiaries
shall, at the date of designation, and will at all times
thereafter, consist of Non-Recourse Debt;
(3) such designation and the Investment of the Company in such
Subsidiary complies with Section 3.3;
(4) such Subsidiary, either alone or in the aggregate with all other
Unrestricted Subsidiaries, does not operate, directly or
indirectly, all or substantially all of the business of the
Company and its Subsidiaries;
(5) such Subsidiary is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation:
(a) to subscribe for additional Capital Stock of such Person; or
30
(b) to maintain or preserve such Person's financial condition or
to cause such Person to achieve any specified levels of
operating results; and
(6) on the date such Subsidiary is designated an Unrestricted
Subsidiary, such Subsidiary is not a party to any agreement,
contract, arrangement or understanding with the Company or any
Restricted Subsidiary with terms substantially less favorable to
the Company than those that might have been obtained from Persons
who are not Affiliates of the Company.
Any such designation by the Board of Directors of the Company shall be evidenced
to the Trustee by filing with the Trustee a resolution of the Board of Directors
of the Company giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions. If, at
any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be Incurred as of such date.
The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that immediately after giving
effect to such designation, no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof and the Company could
Incur at least $1.00 of additional Indebtedness pursuant to the first paragraph
of Section 3.2 on a pro forma basis taking into account such designation.
"U.S. Government Obligations" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligations or a specific payment of principal of or interest on any
such U.S. Government Obligations held by such custodian for the account of the
holder of such depositary receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligations or the specific payment
of principal of or interest on the U.S. Government Obligations evidenced by such
depositary receipt.
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled to vote in the election of
directors, managers or trustees, as applicable.
"Wholly-Owned Subsidiary" means a Restricted Subsidiary, all of the
Capital Stock of which (other than directors' qualifying shares) is owned by the
Company or another Wholly-Owned Subsidiary.
31
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Additional Restricted Securities"................................. 2.1(b)
"Affiliate Transaction"............................................ 3.8
"Agent"............................................................ 3.12
"Agent Members".................................................... 2.1(e)
"Asset Disposition Offer".......................................... 3.7
"Asset Disposition Offer Amount"................................... 3.7
"Asset Disposition Offer Period"................................... 3.7
"Asset Disposition Purchase Date".................................. 3.7
"Authenticating Agent"............................................. 2.2
"Change of Control Offer".......................................... 3.9
"Change of Control Payment"........................................ 3.9
"Change of Control Payment Date"................................... 3.9
"Company Order".................................................... 2.2
"covenant defeasance option"....................................... 8.1(b)
"cross acceleration provision"..................................... 6.1(6)(b)
"Defaulted Interest"............................................... 2.13
"Event of Default"................................................. 6.1
"Excess Proceeds".................................................. 3.7
"Exchange Global Note"............................................. 2.1(b)
"Guarantor Obligations"............................................ 10.1
"Global Securities"................................................ 2.1(b)
"Institutional Accredited Investor Global Note".................... 2.1(b)
32
Defined in
Term Section
---- ----------
"Institutional Accredited Investor Notes".......................... 2.1(b)
"legal defeasance option".......................................... 8.1(b)
"Pari Passu Notes"................................................. 3.7
"payment default".................................................. 6.1(6)(a)
"Paying Agent"..................................................... 2.3
"Private Placement Legend"......................................... 2.1(d)
"protected purchaser".............................................. 2.9
"Registrar"........................................................ 2.3
"Regulation S Global Note"......................................... 2.1(b)
"Regulation S Legend".............................................. 2.1(d)
"Regulation S Notes"............................................... 2.1(b)
"Resale Restriction Termination Date".............................. 2.6(a)
"Restricted Payment"............................................... 3.3
"Restricted Securities"............................................ 2.1(a)
"Rule 144A Global Note"............................................ 2.1(b)
"Rule 144A Notes".................................................. 2.1(b)
"Securities Register".............................................. 2.3
"Special Interest Payment Date".................................... 2.13(a)
"Special Record Date".............................................. 2.13(a)
"Successor Company"................................................ 4.1
SECTION 1.3. 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.
33
"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.
"obligor" on the indenture securities means the Issuers, the
Subsidiary Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.4. 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;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
(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;
(8) all amounts expressed in this Indenture or in any of the
Securities in terms of money refer to the lawful currency of the United
States of America; and
(9) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
34
ARTICLE II
THE SECURITIES
SECTION 2.1. Form, Dating and Terms.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Initial
Securities issued on the date hereof will be in an aggregate principal amount of
$150,000,000. In addition, the Issuers may issue, from time to time in
accordance with the provisions of this Indenture, Additional Securities and
Exchange Securities. Furthermore, Securities may be authenticated and delivered
upon registration or transfer, or in lieu of, other Securities pursuant to
Section 2.6, 2.9, 2.11 or 9.5 or in connection with a redemption pursuant to
Section 5.8 or a Change of Control Offer pursuant to Section 3.9.
The Initial Securities shall be known and designated as "10% Senior
Notes due 2014" of the Issuers. Additional Securities issued as securities
bearing one of the restrictive legends described in Section 2.1(d) ("Restricted
Securities") shall also be known and designated as "10% Senior Notes due 2014"
of the Company.
With respect to any Additional Securities, each of the Issuers shall
set forth in (a) a Board Resolution of each of the Issuers and (b) (i) an
Officers' Certificate or (ii) one or more indentures supplemental hereto, 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 and the issue date of such Additional Securities,
including the date from which interest shall accrue; and
(3) whether such Additional Securities shall be Restricted Securities
issued in the form of Exhibit A hereto.
The Initial Securities, the Additional Securities and the Exchange
Securities shall be considered collectively as a single class for all purposes
of this Indenture. Holders of the Initial Securities, the Additional Securities
and the Exchange Securities will vote and consent together on all matters to
which such Holders are entitled to vote or consent as one class, and none of the
Holders of the Initial Securities, the Additional Securities or the Exchange
Securities shall have the right to vote or consent as a separate class on any
matter to which such Holders are entitled to vote or consent.
If any of the terms of any Additional Securities are established by
action taken pursuant to a Board Resolution of each of the Issuers, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of each of the Issuers and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate or the indenture supplemental
hereto setting forth the terms of the Additional Securities.
35
(b) The Initial Securities are being offered and sold by the Issuers
pursuant to a Purchase Agreement, dated June 29, 2006, among the Issuers, the
Subsidiary Guarantors and the Initial Purchaser. The Initial Securities and any
Additional Securities (if issued as Restricted Securities) (the "Additional
Restricted Securities") will be resold initially only to (A) QIBs in reliance on
Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such Initial
Securities and Additional Restricted Securities may thereafter be transferred
to, among others, QIBs, purchasers in reliance on Regulation S and IAIs in
accordance with Rule 501 of the Securities Act, in each case, in accordance with
the procedure described herein. Additional Securities offered after the date
hereof may be offered and sold by the Issuers from time to time pursuant to one
or more purchase agreements in accordance with applicable law.
Initial Securities and Additional Restricted Securities offered and
sold to QIBs in the United States of America in reliance on Rule 144A (the "Rule
144A Notes") shall be issued in the form of a permanent global Security, without
interest coupons, substantially in the form of Exhibit A, which is hereby
incorporated by reference and made a part of this Indenture, including
appropriate legends as set forth in Section 2.1(d) (the "Rule 144A Global
Note"), deposited with the Trustee, as custodian for DTC, duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. The Rule 144A
Global Note may be represented by more than one certificate, if so required by
DTC's rules regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Rule 144A Global Note may
from time to time be increased or decreased by adjustments made on the Rule 144A
Global Note and on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities and Additional Securities offered and sold outside
the United States of America (the "Regulation S Notes") in reliance on
Regulation S shall be issued in the form of a permanent global Security, without
interest coupons, substantially in the form of Exhibit A including appropriate
legends as set forth in Section 2.1(d) (the "Regulation S Global Note"). The
Regulation S Global Note will be deposited upon issuance with the Trustee, as
custodian for DTC, duly executed by the Issuers and authenticated by the Trustee
as hereinafter provided. During the Restricted Period, interests in the
Regulation S Global Note may be transferred to Non-U.S. Persons pursuant to
Regulation S or to QIBs and IAIs in accordance with this Indenture.
The Regulation S Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of the Regulation S Global Note may from time to time be increased or decreased
by adjustments made on the Regulation S Global Note and on the records of the
Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Securities and Additional Securities resold to IAIs (the
"Institutional Accredited Investor Notes") in the United States of America shall
be issued in the form of a permanent global Security, without interest coupons,
substantially in the form of Exhibit A including appropriate legends as set
forth in Section 2.1(d) (the "Institutional Accredited Investor Global Note")
deposited with the Trustee, as custodian for DTC, duly executed by the Issuers
and authenticated by the Trustee as hereinafter provided. The Institutional
Accredited Investor Global Note may be represented by more than one certificate,
if so required by DTC's rules
36
regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Institutional Accredited
Investor Global Note may from time to time be increased or decreased by
adjustments made on the Institutional Accredited Investor Note and on the
records of the Trustee, as custodian for DTC or its nominee, as hereinafter
provided.
Exchange Securities exchanged for interests in the Rule 144A Notes,
the Regulation S Notes and the Institutional Accredited Investor Notes will be
issued in the form of a permanent global Security, without interest coupons,
substantially in the form of Exhibit A, which is hereby incorporated by
reference and made a part of this Indenture, deposited with the Trustee as
hereinafter provided, including the appropriate legend set forth in Section
2.1(d) (the "Exchange Global Note"). The Exchange Global Note will be deposited
upon issuance with, or on behalf of, the Trustee as custodian for DTC, duly
executed by the Issuers and authenticated by the Trustee as hereinafter
provided. The Exchange Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Institutional Accredited Investor Global Note and the Exchange Global Note are
sometimes collectively herein referred to as the "Global Securities."
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of each of the Issuers maintained for
such purpose in the Borough of Manhattan, The City of New York, State of New
York, or at such other office or agency of each of the Issuers as may be
maintained for such purpose pursuant to Section 2.3; provided, however, that, at
the option of each of the Issuers, each installment of interest may be paid by
(i) check mailed to addresses of the Persons entitled thereto as such addresses
shall appear on the Securities Register or (ii) wire transfer to an account
located in the United States maintained by the payee. Payments in respect of
Securities represented by a Global Security (including principal, premium, if
any, and interest) will be made by wire transfer of immediately available funds
to the accounts specified by DTC. Payments in respect of Securities represented
by Definitive Securities (including principal, premium, if any, and interest)
held by a Holder of at least $1,000,000 aggregate principal amount of Securities
represented by Definitive Securities 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 15
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage, in addition to those set forth on Exhibit A
and in Section 2.1(d). Each of the Issuers and the Trustee shall approve the
forms of the Securities and any notation, endorsement or legend on them. Each
Security shall be dated the date of its authentication. The terms of the
Securities set forth in Exhibit A are part of the terms of this Indenture and,
to the extent applicable, each of the Issuers, the Subsidiary Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
be bound by such terms.
37
(c) Denominations. The Securities shall be issuable only in fully
registered form, without interest coupons, and only in denominations of $2,000
and integral multiples of $1,000 in excess thereof.
(d) Restrictive Legends. Unless and until (i) an Initial Security is
sold under an effective registration statement or (ii) an Initial Security is
exchanged for an Exchange Security in connection with an effective registration
statement, in each case pursuant to the Registration Rights Agreement or a
similar agreement,
(A) the Rule 144A Global Note and the Institutional Accredited
Investor Global Note shall bear the following legend (the "Private Placement
Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF
AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE U.S. WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR
SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT,
38
SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS AND
WARRANTS THAT EITHER (A) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO
ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY PLAN, ACCOUNT OR OTHER
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR PROVISIONS UNDER ANY FEDERAL, STATE,
LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, "SIMILAR LAWS") (EACH, A
"PLAN") OR ANY ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE
"PLAN ASSETS" OF ANY SUCH PLAN OR (B) THE ACQUISITION AND HOLDING OF THIS
SECURITY BY YOU WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER
ANY APPLICABLE SIMILAR LAW.
(B) the Regulation S Global Note shall bear the following legend (the
"Regulation S Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF
AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS 40 DAYS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN
ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
39
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES
THAT OCCUR OUTSIDE THE U.S. WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS AND
WARRANTS THAT EITHER (A) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO
ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY PLAN, ACCOUNT OR OTHER
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR PROVISIONS UNDER ANY FEDERAL, STATE,
LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, "SIMILAR LAWS") (EACH, A
"PLAN") OR ANY ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE
"PLAN ASSETS" OF ANY SUCH PLAN OR (B) THE ACQUISITION AND HOLDING OF THIS
SECURITY BY YOU WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER
ANY APPLICABLE SIMILAR LAW.
(C) Each Global Security, whether or not an Initial Security, shall
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS
40
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, 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.
(e) Book-Entry Provisions.
(i) This Section 2.1(e) shall apply only to Global Securities
deposited with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (x) be registered in the
name of DTC for such Global Security or the nominee of DTC, (y) be delivered to
the Trustee as custodian for DTC and (z) bear legends as set forth in Section
2.1(d).
(iii) Members of, or participants in, DTC ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by DTC or by the Trustee as the custodian of DTC or under such Global
Security, and DTC may be treated by the Issuers, the Trustee and any agent of
the Issuers or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (a)
prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or (b) impair, as between DTC and its Agent Members, the
operation of customary practices of DTC governing the exercise of the rights of
a Holder of a beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to subsection (f) of this Section 2.1 to
beneficial owners who are required to hold Definitive Securities, the Securities
Custodian shall reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
each of the Issuers shall execute, and the Trustee shall authenticate and make
available for delivery, one or more Definitive Securities of like tenor and
amount.
(v) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to subsection (f) of this Section 2.1, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
each of the Issuers shall execute, and the Trustee
41
shall authenticate and make available for delivery, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Global
Security, an equal aggregate principal amount of Definitive Securities of
authorized denominations.
(vi) The registered Holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(vii) Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
(f) Definitive Securities. (i) Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
Definitive Securities. If required to do so pursuant to any applicable law or
regulation, beneficial owners may obtain Definitive Securities in exchange for
their beneficial interests in a Global Security upon written request in
accordance with DTC's and the Registrar's procedures. In addition, Definitive
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (A) DTC notifies each of the
Issuers at any time that it is unwilling or unable to continue as depositary for
such Global Security or DTC ceases to be a clearing agency registered under the
Exchange Act, at a time when DTC is required to be so registered in order to act
as depositary, and in each case a successor depositary is not appointed by the
Issuers within 90 days of such notice or, (B) each of the Issuers in its sole
discretion executes and delivers to the Trustee and Registrar an Officers'
Certificate stating that such Global Security shall be so exchangeable or (C) an
Event of Default has occurred and is continuing and the Registrar has received a
request from DTC. In the event of the occurrence of any of the events specified
in clause (A), (B) or (C) of the preceding sentence, each of the Issuers shall
promptly make available to the Trustee a reasonable supply of Definitive
Securities in fully registered form without interest coupons.
(ii) Any Definitive Security delivered in exchange for an interest in
a Global Security pursuant to Section 2.1(e)(iv) or (v) shall, except as
otherwise provided by Section 2.6(c), bear the applicable legend regarding
transfer restrictions applicable to the Definitive Security set forth in Section
2.1(d).
(iii) In connection with the exchange of a portion of a Definitive
Security for a beneficial interest in a Global Security, the Trustee shall
cancel such Definitive Security, and each of the Issuers shall execute, and the
Trustee shall authenticate and make available for delivery, to the transferring
Holder a new Definitive Security representing the principal amount not so
transferred.
SECTION 2.2. Execution and Authentication. One Officer shall sign the
Securities for each of the Issuers by manual or facsimile signature. If an
Officer whose signature
42
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 authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and make available for delivery:
(1) Initial Securities for original issue on the Issue Date in an aggregate
principal amount of $150,000,000, (2) subject to the terms of this Indenture,
Additional Securities for original issue in an unlimited principal amount and
(3) Exchange Securities for issue only in a registered exchange offer or upon
resale under an effective Shelf Registration Statement, and only in exchange for
Initial Securities or Additional Securities of an equal principal amount, in
each case upon a written order of the Issuers signed by two Officers of each of
the Issuers (the "Company Order"). Such Company Order shall specify whether the
Securities will be in the form of Definitive Securities or Global Securities,
the amount of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated and whether the Securities
are to be Initial Securities, Additional Securities or Exchange Securities.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to each of the Issuers to authenticate the Securities. Any
such instrument shall be evidenced by an instrument signed by a Trust Officer, a
copy of which shall be furnished to each of the Issuers. Unless limited by the
terms of such appointment, any such Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating
Agent. An Authenticating Agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
In case any of the Issuers, pursuant to Article IV, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which any of the Issuers shall
have been merged, or the Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article IV, any of
the Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Order of the successor Person, shall authenticate and make
available for delivery Securities as specified in such order for the purpose of
such exchange. If Securities shall at any time be authenticated and delivered in
any new name of a successor Person pursuant to this Section 2.2 in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but
43
without expense to them, shall provide for the exchange of all Securities at the
time outstanding for Securities authenticated and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. Each of the Issuers 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 payment (the "Paying Agent"). Each of the
Issuers shall cause each of the Registrar and the Paying Agent to maintain an
office or agency. The Registrar shall keep a register of the Securities and of
their transfer and exchange (the "Securities Register"). Each of the Issuers may
have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent and the term
"Registrar" includes any co-registrar.
Each of the Issuers shall enter into an appropriate agency agreement
with any Registrar or Paying Agent 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 Issuers shall notify the
Trustee of the name and address of each such agent. If any of the Issuers 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 7.7. Any of
the Issuers' Wholly-Owned Subsidiaries organized in the United States may act as
Paying Agent or Registrar.
Each of the Issuers initially appoint the Trustee as Registrar and
Paying Agent for the Securities. The Issuers may remove any Registrar or Paying
Agent upon written notice to such Registrar or Paying Agent and to the Trustee;
provided, however, that no such removal shall become effective until (i)
acceptance of any appointment by a successor as evidenced by an appropriate
agreement entered into by the Issuers and such successor Registrar or Paying
Agent, as the case may be, and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (i) above. The Registrar or
Paying Agent may resign at any time upon written notice to the Issuers and the
Trustee.
SECTION 2.4. Paying Agent to Hold Money in Trust. By no later than
10:00 a.m. (New York City time) on the date on which any principal of, premium,
if any, or interest on any Security is due and payable, the Company shall
deposit with the Paying Agent a sum sufficient in immediately available funds to
pay such principal, premium, if any, or interest when due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by such Paying Agent for the payment of principal,
premium, if any, of or interest on the Securities (whether such assets have been
distributed to it by the Company or other obligors on the Securities) and shall
notify the Trustee in writing of any default by the Company or any Subsidiary
Guarantor in making any such payment. If any of the Issuers or a Subsidiary
Guarantor of the Company 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 (other than the Trustee) to pay all money held
by it to the Trustee and to account for any funds or assets disbursed by such
Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee. Upon any
44
bankruptcy, reorganization or similar proceeding with respect to any of the
Issuers, the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5. 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 and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the Registrar, or to the extent
otherwise required under the TIA, the Company shall furnish or cause the
Registrar to 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 and the Issuers
shall otherwise comply with TIA Section 312(a).
SECTION 2.6. Transfer and Exchange.
(a) The following provisions shall apply with respect to any proposed
transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior
to the date which is two years after the later of the date of its original issue
and the last date on which the Issuers or any Affiliate of the Issuers was the
owner of such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date"):
(i) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a QIB shall be made upon
the representation of the transferee, in the form of assignment as set
forth on the reverse of the Security, that it is purchasing the 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, 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 Issuers 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 its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to an IAI shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the
form set forth in Section 2.7 from the proposed transferee and, if
requested by any of the Issuers or the Trustee, the receipt by the Trustee
or its agent of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(iii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a Non-U.S. Person shall
be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.8 from the proposed
transferee and, if requested by any of the Issuers or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them.
45
(b) The following provisions shall apply with respect to any proposed
transfer of a Regulation S Note prior to the expiration of the Restricted
Period:
(i) a transfer of a Regulation S Note or a beneficial interest therein
to a QIB shall be made upon the representation of the transferee, in the
form of assignment as set forth on the reverse of the Security, that it is
purchasing the 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, 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
Issuers 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 its foregoing representations in order to claim
the exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of
a certificate substantially in the form set forth in Section 2.7 from the
proposed transferee and, if requested by any of the Issuers or the Trustee,
the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest
therein to a Non-U.S. Person shall be made in accordance with applicable
law and pursuant to the Regulation S Legend upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in Section
2.8 hereof from the proposed transferee and, if requested by any of the
Issuers or the Trustee, receipt by the Trustee or its agent of an opinion
of counsel, certification and/or other information satisfactory to each of
them.
After the expiration of the Restricted Period, interests in the
Regulation S Note may be transferred in accordance with applicable law without
requiring the certifications set forth in Section 2.7 or 2.8 or any additional
certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless, (i) Initial Securities are being
exchanged for Exchange Securities in a registered exchange offer in which case
the Exchange Securities shall not bear a Restricted Securities Legend, (ii) an
Initial Security is being transferred pursuant to the Shelf Registration
Statement or other effective registration statement or (iii) there is delivered
to the Registrar an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act. Any Additional Securities sold in a registered
offering shall not be required to bear the Restricted Securities Legend.
(d) The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.1 or this Section
2.6. The Issuers shall have the
46
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable prior
written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, each of the
Issuers shall, subject to the other terms and conditions of this Article
II, execute, and the Trustee shall authenticate, Definitive Securities and
Global Securities at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Issuers may require the Holder to pay 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 charges payable upon
exchange or transfer pursuant to Sections 2.6 or 9.5).
(iii) The Issuers (and the Registrar) shall not be required to
register the transfer of or exchange of any Security for a period beginning
(1) 15 days before the mailing of a notice of an offer to repurchase or
redeem Securities and ending at the close of business on the day of such
mailing or (2) 15 days before an interest payment date and ending on such
interest payment date.
(iv) Prior to the due presentation for registration of transfer of any
Security, each of the Issuers, the Trustee, the Paying Agent or the
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, premium, if any, and interest on such
Security and for all other purposes whatsoever, including without
limitation the transfer or exchange of such Security, whether or not such
Security is overdue, and none of the Issuers, the Trustee, the Paying Agent
or the Registrar shall be affected by notice to the contrary.
(v) Any Definitive Security delivered in exchange for an interest in a
Global Security pursuant to Section 2.1(e) shall, except as otherwise
provided by Section 2.6(c), bear the applicable legend regarding transfer
restrictions applicable to the Definitive Security set forth in Section
2.1(d).
(vi) 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.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in, DTC or
other Person with respect to the accuracy of the records of DTC 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 DTC) of any notice (including any
notice of redemption) or the payment of any amount or delivery of any Securities
(or other
47
security or property) 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
in respect of the Securities shall be given or made only to or upon the order of
the registered Holders (which shall be DTC or its nominee in the case of a
Global Security). The rights of beneficial owners in any Global Security shall
be exercised only through DTC subject to the applicable rules and procedures of
DTC. The Trustee may rely and shall be fully protected in relying upon
information furnished by DTC with respect to its members, participants and any
beneficial owners.
(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 DTC
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 or reasonably requested by the Issuers, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 2.7. Form of Certificate to be Delivered in Connection with
Transfers to IAIs.
[Date]
Xxxxx Fargo Bank, National Association
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
Re: Xxxxxxx & Xxxxxxxxx LLC
Xxxxxxx & Xxxxxxxxx Corp.
10% Senior Notes due 2014
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[_________]
principal amount of the 10% Senior Notes due 2014 (the "Securities") of Xxxxxxx
& Xxxxxxxxx LLC and Xxxxxxx & Xxxxxxxxx Corp. (the "Issuers").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name: ____________________________________________
Address: _________________________________________
48
Taxpayer ID Number: ______________________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Securities
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is two years after the
later of the date of original issue and the last date on which the Issuers or
any affiliate of any of the Issuers was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Issuers, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act, to a person we reasonably
believe is a "qualified institutional buyer" under Rule 144A of the Securities
Act (a "QIB") that is purchasing for its own account or for the account of a QIB
and to whom notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is purchasing for its own account or
for the account of such an institutional "accredited investor," in each case in
a minimum principal amount of Securities of $250,000, for investment purposes
and not with a view to or for offer or sale in connection with any distribution
in violation of the Securities Act or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in
each of the foregoing cases to any requirement of law that the disposition of
our property or the property of such investor account or accounts be at all
times within our or their control and in compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other transfer of
the Securities is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Issuers and Xxxxx
Fargo Bank, National Association, as Trustee (the "Trustee"), which shall
provide, among other things, that the transferee is an institutional "accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) and that it is acquiring such Securities for investment purposes
and not for distribution in violation of the Securities Act and other matters
discussed in this letter. Each purchaser acknowledges that the Issuers and the
Trustee reserve the right prior to any offer, sale or other transfer prior to
the Resale Restriction Termination Date of the Securities pursuant to clauses
(d), (e) or (f) above to
49
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to each of the Issuers and the Trustee.
The Trustee and each of the Issuers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
TRANSFEREE:
----------------------------
BY:
------------------------------------
cc: Xxxxxxx & Xxxxxxxxx LLC
Xxxxxxx & Xxxxxxxxx Corp.
SECTION 2.8. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S.
[Date]
Xxxxx Fargo Bank, National Association
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
Re: Xxxxxxx & Xxxxxxxxx LLC
Xxxxxxx & Xxxxxxxxx Corp.
10% Senior Notes due 2014
Ladies and Gentlemen:
In connection with our proposed sale of $[__________] aggregate
principal amount of the 10% Senior Notes due 2014 (the "Securities") of Xxxxxxx
& Xxxxxxxxx LLC and Xxxxxxx & Xxxxxxxxx Corp. (the "Issuers"), we confirm that
such sale has been effected pursuant to and in accordance with Regulation S
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United
States or to a U.S. person;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States or (ii) the transaction was executed in, on
50
or through the facilities of a designated off-shore securities market and
neither we nor any person acting on our behalf knows that the transaction
has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of
Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may be.
Xxxxx Fargo Bank, National Association, as Trustee, and the Issuers
are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby. Terms used in this certificate have the meanings set forth in Regulation
S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
-------------------------------------
Authorized Signature
cc: Xxxxxxx & Xxxxxxxxx LLC
Xxxxxxx & Xxxxxxxxx Corp.
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen 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 Issuers shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are
met, such that the Securityholder (a) notifies the Issuers or the Trustee within
a reasonable time after such Securityholder has notice of such loss, destruction
or wrongful taking and the Registrar has not registered a transfer prior to
receiving such notification, (b) makes such request to the Issuers or Trustee
prior to the Security being acquired by a protected purchaser as defined in
Section 8-303 of the Uniform Commercial Code (a "protected purchaser") and (c)
satisfies any other reasonable requirements of the Trustee and the Issuers. If
required by the Trustee or the Issuers, such Holder shall furnish an indemnity
bond sufficient in the judgment of the Issuers and the Trustee to protect the
Issuers, the Trustee, the Paying Agent and the Registrar from any loss
51
which any of them may suffer if a Security is replaced, and, in the absence of
notice to the Issuers, any Subsidiary Guarantor or the Trustee that such
Security has been acquired by a bona fide purchaser, the Issuers shall execute
and, upon receipt of a Company Order, the Trustee shall authenticate and make
available for delivery, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuers in their discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuers
may require that such Holder pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of counsel and of the Trustee) in
connection therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuers, any Subsidiary Guarantor (if
applicable) and any other obligor upon the Securities, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding in the
event either of the Issuers or an Affiliate of the Issuers holds the Security,
provided, however, that (i) for purposes of determining which are outstanding
for consent or voting purposes hereunder, the provisions of Section 11.6 shall
apply and (ii) in determining whether the Trustee shall be protected in making a
determination whether the Holders of the requisite principal amount of
outstanding Securities are present at a meeting of Holders of Securities for
quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Issuers or
an Affiliate of any of the Issuers shall not be considered outstanding.
If a Security is replaced pursuant to Section 2.9 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee and the Issuers receive proof satisfactory to them that the
replaced Security is held by a protected purchaser. A mutilated Security ceases
to be outstanding upon surrender of such Security and replacement pursuant to
Section 2.9.
52
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, premium, if any, and accrued 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 2.11. Temporary Securities. In the event that Definitive
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Issuers may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form, and shall carry all rights, of Definitive Securities
but may have variations that the Issuers consider appropriate for temporary
Securities. Without unreasonable delay, the Issuers shall prepare and the
Trustee shall authenticate Definitive Securities. After the preparation of
Definitive Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at any office
or agency maintained by the Issuers for that purpose and such exchange shall be
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Issuers shall execute, and the Trustee shall
authenticate and make available for delivery in exchange therefor, one or more
Definitive Securities representing an equal principal amount of Securities.
Until so exchanged, the Holder of temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as a Holder of Definitive
Securities.
SECTION 2.12. Cancellation. The Issuers 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 all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and dispose of such Securities (subject to the record retention
requirements of the Exchange Act) in accordance with its internal policies and
customary procedures. If any of the Issuers or any Subsidiary Guarantor acquires
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.12. Except as provided in Section 2.9, each of the Issuers may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation for any reason other than in connection with a transfer
or exchange.
At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, transferred, redeemed,
repurchased or canceled, such Global Security shall be returned by DTC to the
Trustee 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 Definitive Securities, transferred in exchange for an interest in
another Global Security, redeemed, repurchased 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 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.
53
SECTION 2.13. Payment of Interest; Defaulted Interest. Interest on any
Security which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid to the Person in whose name such Security
(or one or more predecessor Securities) is registered at the close of business
on the regular record date for such payment at the office or agency of the
Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security which is payable, but is not paid when
the same becomes due and payable and such nonpayment continues for a period of
30 days shall forthwith cease to be payable to the Holder on the regular record
date, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") shall be
paid by the Issuers, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record
Date (as defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date (not less than 30 days after such notice) of
the proposed payment (the "Special Interest Payment Date"), and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a record date (the "Special Record Date") for the payment of such
Defaulted Interest, which date shall be not more than 15 days and not less
than 10 days prior to the Special Interest Payment Date and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Issuers of such Special
Record Date, and in the name and at the expense of the Issuers, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date and Special Interest Payment Date therefor to be given in the
manner provided for in Section 11.2, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date
therefor having been so given, such Defaulted Interest shall be paid on the
Special Interest Payment Date to the Persons in whose names the Securities
(or their respective predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Issuers to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
54
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14. Computation of Interest. Interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.15. CUSIP, Common Code and ISIN Numbers. The Issuers in
issuing the Securities may use "CUSIP," "Common Code" or "ISIN" numbers and, if
so, the Trustee shall use "CUSIP," "Common Code" or "ISIN" numbers in notices of
redemption or purchase 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 or purchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
purchase shall not be affected by any defect in or omission of such CUSIP,
Common Code or ISIN number. The Issuers shall promptly notify the Trustee in
writing of any change in the CUSIP, Common Code or ISIN number.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Securities. The Issuers shall promptly pay the
principal of, premium, if any, and interest on the Securities on the dates and
in the manner provided in the Securities and in this Indenture. Principal,
premium, if any, 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 immediately available funds sufficient to pay all principal, premium,
if any, and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Issuers 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.
The Issuers and the Subsidiary Guarantors will pay any present or
future stamp, court or documentary taxes or any other excise or property taxes,
charges or similar levies that arise in any jurisdiction from the execution,
delivery, enforcement or registration of the Securities, the Subsidiary
Guarantees, this Indenture or any other document or instrument in relation
thereof, or the receipt of any payments with respect to the Securities or the
Subsidiary Guarantees, excluding such taxes, charges or similar levies imposed
by any jurisdiction outside of the United States, the jurisdiction of
incorporation of any successor of any of the Issuers or any Subsidiary Guarantor
or any jurisdiction in which a paying agent is located, other than those
resulting from, or required to be paid in connection with, the enforcement of
the Securities, the Subsidiary Guarantees or any other such document or
instrument following the occurrence of
55
any Event of Default with respect to the Securities. The Issuers or the
Subsidiary Guarantors will agree to indemnify the Holders for any such taxes
paid by such Holders.
Notwithstanding anything to the contrary contained in this Indenture,
the Issuers or any Subsidiary Guarantor may, to the extent it is required to do
so by law, deduct or withhold income or other similar taxes imposed by the
United States of America from principal, premium or interest payments hereunder.
SECTION 3.2. Limitation on Indebtedness. The Company will not, and
will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(including Acquired Indebtedness); provided, however, that the Company and the
Restricted Subsidiaries may Incur Indebtedness if on the date thereof:
(1) (a) on or prior to June 30, 2008, the Consolidated Coverage Ratio
for the Company and its Restricted Subsidiaries is at least 2.00
to 1.00; and (b) thereafter the Consolidated Coverage Ratio for
the Company and its Restricted Subsidiaries is at least 2.50 to
1.00; and
(2) no Event of Default will have occurred or be continuing or would
occur as a consequence of Incurring the Indebtedness or
transactions relating to such Incurrence.
The first paragraph of this covenant will not prohibit the Incurrence
of the following Indebtedness:
(1) Indebtedness of the Company or any Subsidiary Guarantor Incurred
pursuant to a Credit Facility in an aggregate amount up to the
greater of (a) the Borrowing Base and (b) $125 million less the
aggregate principal amount of all scheduled principal repayments
unless refinanced on the date of such repayment under this clause
(1) and all mandatory prepayments (including with the proceeds of
asset dispositions) of principal thereof permanently reducing the
commitments thereunder;
(2) Guarantees by (x) the Company or Restricted Subsidiaries of
Indebtedness Incurred by the Company or a Restricted Subsidiary
in accordance with the provisions of this Indenture, provided
that in the event such Indebtedness that is being Guaranteed is a
Subordinated Obligation or a Guarantor Subordinated Obligation,
then the related Guarantee shall be subordinated in right of
payment to the Securities or the Subsidiary Guarantee, as the
case may be;
(3) Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owing to
and held by the Company or any Restricted Subsidiary; provided,
however:
(a) if the Company is the obligor on such Indebtedness and a
Sub-Guarantor is not the obligee, such Indebtedness is
expressly
56
subordinated to the prior payment in full in cash of all
obligations with respect to the Securities; and
(b) if a Subsidiary Guarantor is the obligor on such
Indebtedness and the Company or a Subsidiary Guarantor is
not the obligee, such Indebtedness is subordinated in right
of payment to the Subsidiary Guarantee of such Subsidiary
Guarantor; and
(c) (i) any subsequent issuance or transfer of Capital Stock or
any other event which results in any such Indebtedness
being beneficially held by a Person other than the
Company or a Restricted Subsidiary of the Company; and
(ii) any sale or other transfer of any such Indebtedness to
a Person other than the Company or a Restricted
Subsidiary of the Company
shall be deemed, in each case, to constitute an Incurrence of such Indebtedness
by the Company or such Subsidiary, as the case may be.
(4) Indebtedness represented by (a) the Securities issued on the
Issue Date, the Subsidiary Guarantees and the related Exchange
Securities and exchange guarantees issued pursuant to the
Registration Rights Agreement, (b) any Indebtedness (other than
the Indebtedness described in clauses (1), (2), (3), (6), (8),
(9), (10) and (11) of this paragraph) outstanding on the Issue
Date and (c) any Refinancing Indebtedness Incurred in respect of
any Indebtedness described in this clause (4) or clause (5) of
this paragraph or Incurred pursuant to the first paragraph of
this covenant;
(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding
on the date on which such Restricted Subsidiary is acquired by,
or merged into, the Company or any Restricted Subsidiary (other
than Indebtedness Incurred (a) to provide all or any portion of
the funds utilized to consummate the transaction or series of
related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was otherwise acquired by the
Company or (b) otherwise in connection with, or in contemplation
of, such acquisition); provided, however, that at the time such
Restricted Subsidiary is acquired by the Company, the Company
would have been able to Incur $1.00 of additional Indebtedness
pursuant to the first paragraph of this covenant, or the
Consolidated Coverage Ratio would be improved, after giving
effect to the Incurrence of such Indebtedness pursuant to this
clause (5);
(6) Indebtedness under Hedging Obligations (including related letters
of credit) that are Incurred in the ordinary course of business
(and not for speculative purposes) (1) for the purpose of fixing
or hedging interest rate risk with respect to any Indebtedness
Incurred in accordance with this
57
Indenture; (2) for the purpose of fixing or hedging currency
exchange rate risk with respect to any currency exchanges; or (3)
for the purpose of fixing or hedging commodity price risk with
respect to any commodities;
(7) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capitalized Lease
Obligations, mortgage financings, purchase money obligations or
other payments, in each case Incurred to finance all or any part
of the purchase price or cost of construction or improvement of
assets or property, including design, development and
installation, personal or real (other than Capital Stock or other
Investments), acquired, constructed or improved in the ordinary
course of business of the Company or such Restricted Subsidiary,
and Attributable Indebtedness, in an aggregate principal amount,
including all Refinancing Indebtedness Incurred to refund,
defease, renew, extend, refinance or replace any Indebtedness
Incurred pursuant to this clause (7), not to exceed $10 million
at any time outstanding;
(8) Indebtedness Incurred in respect of workers' compensation claims,
self-insurance obligations, or otherwise in connection with
workers' compensation, health, disability or other employee
benefits or property, casualty or liability insurance, pursuant
to indemnification or reimbursement obligations, performance,
bid, appeal, surety and similar bonds and completion guarantees
provided by the Company or a Restricted Subsidiary in the
ordinary course of business;
(9) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary 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 Capital Stock of a Restricted Subsidiary,
provided that, in the case of any disposition, the maximum
aggregate liability in respect of all such Indebtedness shall at
no time exceed the gross proceeds actually received by the
Company and its Restricted Subsidiaries in connection with such
disposition;
(10) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
(except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, provided,
however, that such Indebtedness is extinguished within five
business days of Incurrence;
(11) Indebtedness Incurred by Foreign Subsidiaries in an aggregate
principal amount at any time outstanding under this clause (11),
including all Refinancing Indebtedness Incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (11), not to exceed $10 million;
and
58
(12) in addition to the items referred to in clauses (1) through (11)
above, Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate outstanding principal amount which,
when taken together with the principal amount of all other
Indebtedness Incurred pursuant to this clause (12) and then
outstanding, will not exceed $25 million at any time outstanding.
The Company will not Incur any Indebtedness under the preceding paragraph if the
proceeds thereof are used, directly or indirectly, to refinance any Subordinated
Obligations of the Issuers unless such Indebtedness will be subordinated to the
Securities to at least the same extent as such Subordinated Obligations. No
Subsidiary Guarantor will Incur any Indebtedness under the preceding paragraph
if the proceeds thereof are used, directly or indirectly, to refinance any
Guarantor Subordinated Obligations of such Subsidiary Guarantor unless such
Indebtedness will be subordinated to the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee to at least the same extent as such
Guarantor Subordinated Obligations.
For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in
compliance with, this covenant:
(1) subject to clause (2) below, in the event that Indebtedness meets
the criteria of more than one of the types of Indebtedness
described in the first and second paragraphs of this covenant,
the Company, in its sole discretion, will classify such item of
Indebtedness on the date of Incurrence and may later classify
such item of Indebtedness in any manner that complies with this
covenant and only be required to include the amount and type of
such Indebtedness in one of such clauses;
(2) all Indebtedness outstanding on the Issue Date under the senior
credit facility shall be deemed Incurred under clause (1) of the
second paragraph of this covenant and not the first paragraph or
clause (4) of the second paragraph of this covenant;
(3) Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness which is otherwise included in the
determination of a particular amount of Indebtedness shall not be
included;
(4) if obligations in respect of letters of credit are Incurred
pursuant to a Credit Facility and are being treated as Incurred
pursuant to clause (1) of the second paragraph above and the
letters of credit relate to other Indebtedness, then such other
Indebtedness shall not be included;
(5) the principal amount of any Disqualified Stock of the Company or
a Restricted Subsidiary, or Preferred Stock of a Restricted
Subsidiary that is not a Subsidiary Guarantor, will be equal to
the greater of the maximum mandatory redemption or repurchase
price (not including, in either case,
59
any redemption or repurchase premium) or the liquidation
preference thereof;
(6) Indebtedness permitted by this covenant need not be permitted
solely by reference to one provision permitting such Indebtedness
but may be permitted in part by one such provision and in part by
one or more other provisions of this covenant permitting such
Indebtedness;
(7) the principal amount of any Indebtedness outstanding in
connection with a securitization transaction or series of
transactions is the amount of obligations outstanding under the
legal documents entered into as part of such transaction that
would be characterized as principal if such transaction were
structured as a secured lending transaction rather than as a
purchase relating to such transaction; and
(8) the amount of Indebtedness issued at a price that is less than
the principal amount thereof will be equal to the amount of the
liability in respect thereof determined in accordance with GAAP.
Accrual of interest, accrual of dividends, the accretion of accreted value, the
payment of interest in the form of additional Indebtedness and the payment of
dividends in the form of additional shares of Preferred Stock or Disqualified
Stock will not be deemed to be an Incurrence of Indebtedness for purposes of
this covenant. The amount of any Indebtedness outstanding as of any date shall
be (i) the accreted value thereof in the case of any Indebtedness issued with
original issue discount and (ii) the principal amount or liquidation preference
thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
In addition, the Company will not permit any of its Unrestricted
Subsidiaries to Incur any Indebtedness or issue any shares of Disqualified
Stock, other than Non-Recourse Debt. If at any time an Unrestricted Subsidiary
becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be
deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such
Indebtedness is not permitted to be Incurred as of such date under this Section
3.2, the Company shall be in Default of this covenant).
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness;
provided that if such Indebtedness is Incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-dominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such
U.S. dollar-dominated restriction shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness does not exceed
the principal amount of such Indebtedness being refinanced. Notwithstanding any
other provision of this covenant, the maximum amount of Indebtedness that the
Company may Incur pursuant to this
60
covenant shall not be deemed to be exceeded solely as a result of fluctuations
in the exchange rate of currencies. The principal amount of any Indebtedness
Incurred to refinance other Indebtedness, if Incurred in a different currency
from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such Refinancing
Indebtedness is denominated that is in effect on the date of such refinancing.
SECTION 3.3. Limitation on Restricted Payments. The Company will not,
and will not permit any of its Restricted Subsidiaries, directly or indirectly,
to:
(1) declare or pay any dividend or make any distribution (whether
made in cash, securities or other property) on or in respect of
its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company or any of its
Restricted Subsidiaries) except:
(a) dividends or distributions payable in Capital Stock of the
Company (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock of
the Company; and
(b) dividends or distributions payable to the Company or another
Restricted Subsidiary (and if such Restricted Subsidiary is
not a Wholly-Owned Subsidiary, to its other holders of
common Capital Stock on a pro rata basis);
(2) purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company or any direct or indirect parent of
the Company held by Persons other than the Company or a
Restricted Subsidiary (other than in exchange for Capital Stock
of the Company (other than Disqualified Stock));
(3) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Subordinated
Obligations or Guarantor Subordinated Obligations (other than (x)
Indebtedness of the Company owing to and held by any Subsidiary
Guarantor or Indebtedness of a Subsidiary Guarantor owing to and
held by the Company or any other Subsidiary Guarantor permitted
under clause (3) of the second paragraph of Section 3.2 or (y)
the purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Subordinated Obligations or
Guarantor 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
purchase, repurchase, redemption, defeasance or other acquisition
or retirement); or
(4) make any Restricted Investment in any Person;
(any such dividend, distribution, purchase, redemption, repurchase, defeasance,
other acquisition, retirement or Restricted Investment referred to in clauses
(1) through (4) shall be referred to
61
herein as a "Restricted Payment"), if at the time the Company or such Restricted
Subsidiary makes such Restricted Payment:
(a) a Default shall have occurred and be continuing (or would result
therefrom); or
(b) the Company is not able to Incur $1.00 of additional Indebtedness
pursuant to the first paragraph under Section 3.2 after giving
effect, on a pro forma basis, to such Restricted Payment; or
(c) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made subsequent to the Issue Date
(excluding Restricted Payments made pursuant to clauses (1), (2),
(3), (4), (7), (8), (9), (10) and (13) of the next succeeding
paragraph) would exceed the sum of:
(i) 50% of Consolidated Net Income for the period (treated as
one accounting period) from the beginning of the fiscal
quarter in which the Issue Date occurs to the end of the
most recent fiscal quarter ending prior to the date of such
Restricted Payment for which financial statements are in
existence (or, in case such Consolidated Net Income is a
deficit, minus 100% of such deficit);
(ii) 100% of (x) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of its Capital Stock (other
than Disqualified Stock) or other capital contributions
subsequent to the Issue Date (other than Net Cash Proceeds
received from an issuance or sale of such Capital Stock to a
Subsidiary of the Company or an employee stock ownership
plan, option plan or similar trust to the extent such sale
to an employee stock ownership plan or similar trust is
financed by loans from or Guaranteed by the Company or any
Restricted Subsidiary unless such loans have been repaid
with cash on or prior to the date of determination) and (y)
the fair market value of property constituting Additional
Assets received by the Company subsequent to the Issue Date
in exchange for its Capital Stock (other than Disqualified
Stock); provided that this clause (ii) shall not include the
proceeds from or assets received as Excluded Contributions;
(iii) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's 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 its Restricted
Subsidiaries convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the
amount of any cash, or the fair market value
62
of any other property, distributed by the Company upon such
conversion or exchange); and
(iv) the amount equal to the net reduction in Restricted
Investments made by the Company or any of its Restricted
Subsidiaries in any Person resulting from:
(A) repurchases or redemptions of such Restricted
Investments by such Person, proceeds realized upon the
sale of such Restricted Investment to an unaffiliated
purchaser, repayments of loans or advances or other
transfers of assets (including by way of dividend or
distribution) by such Person to the Company or any
Restricted Subsidiary (other than for reimbursement of
tax payments);
(B) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as
provided in the definition of "Investment") not to
exceed, in the case of any Unrestricted Subsidiary, the
amount of Investments previously made by the Company or
any Restricted Subsidiary in such Unrestricted
Subsidiary; or
(C) dividends and distributions received from Unrestricted
Subsidiaries.
which amount in each case under clause (iv)(A) and (B) above
was included in the calculation of the amount of Restricted
Payments; provided, however, that no amount will be included
under this clause (iv) to the extent it is already included
in Consolidated Net Income.
The provisions of the preceding paragraph will not prohibit:
(1) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Capital Stock, Disqualified Stock or
Subordinated Obligations of the Company or Guarantor Subordinated
Obligations of any Subsidiary Guarantor made by exchange for, or
out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified Stock and
other than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan or similar trust to the extent such
sale to an employee stock ownership plan or similar trust is
financed by loans from or Guaranteed by the Company or any
Restricted Subsidiary unless such loans have been repaid with
cash on or prior to the date of determination); provided,
however, that the Net Cash Proceeds from such sale of Capital
Stock will be excluded from clause (c)(ii) of the preceding
paragraph;
63
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Subordinated Obligations of the
Company or Guarantor Subordinated Obligations of any Subsidiary
Guarantor made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Subordinated Obligations of the
Company or any purchase, repurchase, redemption, defeasance or
other acquisition or retirement of Guarantor Subordinated
Obligations made by exchange for or out of the proceeds of the
substantially concurrent sale of Guarantor Subordinated
Obligations that, in each case, is permitted to be Incurred
pursuant to Section 3.2 and that in each case constitutes
Refinancing Indebtedness;
(3) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Disqualified Stock of the Company or
a Restricted Subsidiary made by exchange for or out of the
proceeds of the substantially concurrent sale of Disqualified
Stock of the Company or such Restricted Subsidiary, as the case
may be, that, in each case, is permitted to be Incurred pursuant
to Section 3.2 and that in each case constitutes Refinancing
Indebtedness;
(4) so long as no Default or Event of Default has occurred and is
continuing, any purchase or redemption of Subordinated
Obligations or Guarantor Subordinated Obligations of a Subsidiary
Guarantor from Net Available Cash to the extent permitted under
Section 3.7 below;
(5) dividends or distributions paid within 60 days after the date of
declaration if at such date of declaration such dividend or
distribution would have complied with this provision;
(6) so long as no Default or Event of Default has occurred and is
continuing:
(a) the purchase, redemption or other acquisition, cancellation
or retirement for value of Capital Stock, or options,
warrants, equity appreciation rights or other rights to
purchase or acquire Capital Stock of the Company or any
Restricted Subsidiary or any direct or indirect parent of
the Company held by any existing or former employees or
management of the Company or any Subsidiary of the Company
or their assigns, estates or heirs, in each case in
connection with the repurchase provisions under employee
stock option or stock purchase agreements or other
agreements to compensate management employees; provided that
such Capital Stock, or options, warrants, equity
appreciation rights or other rights to purchase or acquire
Capital Stock, were received for services related to, or for
the benefit of, the Company and its Restricted Subsidiaries;
and provided further that such redemptions or repurchases
pursuant to this clause will not exceed $5 million in the
aggregate for all such redemptions and repurchases, plus the
amount of any capital contributions to the
64
Company as a result of sales of Capital Stock, or options,
warrants, equity appreciation rights or other rights to
purchase or acquire Capital Stock, of the Company or any
direct or indirect parent of the Company to such persons
(provided, however, that the Net Cash Proceeds from such
sale of Capital Stock so applied will be excluded from
clause (c)(ii) of the preceding paragraph); and
(b) loans or advances to employees, officers or directors of the
Company or any Subsidiary of the Company the proceeds of
which are used to purchase Capital Stock of the Company, in
an aggregate amount not in excess of $5 million with respect
to all loans or advances made since the Issue Date (without
giving effect to the forgiveness of any such loan) provided,
however, that the Company and its Subsidiaries shall comply
in all material respects with applicable law;
(7) so long as no Default or Event of Default has occurred and is
continuing, the declaration and payment of dividends to holders
of any class or series of Disqualified Stock of the Company
issued in accordance with the terms of this Indenture to the
extent such dividends are included in the definition of
"Consolidated Interest Expense;"
(8) repurchases of Capital Stock deemed to occur upon the exercise of
stock options, warrants or other convertible securities if such
Capital Stock represents a portion of the exercise price thereof;
(9) (a) with respect to each tax year or portion thereof that the
Company qualifies as a Flow Through Entity, the distribution
by the Company to the holders of Capital Stock of the
Company of an amount equal to the product of (i) the amount
of aggregate net taxable income of the Company allocated to
the holders of Capital Stock of the Company for such period
(it being understood that for purposes of calculating such
taxable income pursuant to this clause (a), any of the
Company's non-cash interest expense and amortization of
original issue discount shall be excluded) and (ii) the
Presumed Tax Rate for such period; and
(b) with respect to any tax year or portion thereof that the
Company does not qualify as a Flow Through Entity, the
payment of dividends or other distributions to any direct or
indirect parent company of the Company in amounts required
for such parent company to pay federal, state or local
income taxes (as the case may be) imposed directly on such
parent company to the extent such income taxes are
attributable to the income of the Company and its Restricted
Subsidiaries (including without limitation, by virtue of
such parent company being the common parent of a
65
consolidated or combined tax group of which the Company
and/or its Restricted Subsidiaries are members);
(10) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated
Obligation (i) at a purchase price not greater than 101% of the
principal amount of such Subordinated Obligation in the event of
a Change of Control in accordance with provisions similar to
Section 3.9 or (ii) at a purchase price not greater than 100% of
the principal amount thereof in accordance with provisions
similar to Section 3.7; provided that, prior to or
contemporaneously with such purchase, repurchase, redemption,
defeasance or other acquisition or retirement, the Company has
made the Change of Control Offer or Asset Disposition Offer, as
applicable, as provided in such covenant with respect to the
Securities and has completed the repurchase or redemption of all
Securities validly tendered for payment in connection with such
Change of Control Offer or Asset Disposition Offer;
(11) the payment of cash in lieu of fractional shares of Capital Stock
in connection with any transaction otherwise permitted under this
Indenture;
(12) the payment of dividends on the Company's Common Stock following
the first Equity Offering of the Company's Common Stock in a
registered public offering after the Issue Date of up to 6% per
annum of the Net Cash Proceeds received by the Company in such
Equity Offering, other than public offerings of the Company's
Common Stock registered on Form S-4 or S-8 and other than any
public sale constituting an Excluded Contribution;
(13) Investments that are made with Excluded Contributions; and
(14) Investments in Xxxxxxx & Xxxxxxxxx Truck Holdings LLC made after
the Issue Date in an amount not to exceed at any time outstanding
(after giving effect to any returns of capital or other repayment
of such investment) $1 million.
The amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of such Restricted Payment of the asset(s) or securities
proposed to be paid, transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair
market value of any cash Restricted Payment shall be its face amount and any
non-cash Restricted Payment shall be determined conclusively by:
(1) the Company acting in good faith, if such fair market value is
estimated by the Company to be less than $5 million;
(2) the Board of Directors of the Company acting in good faith, whose
resolution with respect thereto shall be delivered to the
Trustee, if such
66
fair market value is estimated by the Board of Directors of the
Company to be less than $20 million; and
(3) an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing, whose opinion or
appraisal with respect thereto shall be delivered to the Trustee,
if such fair market value is estimated in good faith by the Board
of Directors of the Company to exceed $20 million.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 3.3 were computed, together with a copy of any
resolution, fairness opinion or appraisal required by this Indenture.
SECTION 3.4. Limitation on Liens. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
Incur or suffer to exist any Lien (other than Permitted Liens) upon any of its
property or assets (including Capital Stock of Subsidiaries), whether owned on
the Issue Date or acquired after that date, which Lien is securing any
Indebtedness, unless contemporaneously with the Incurrence of such Liens
effective provision is made to secure the Indebtedness due under this Indenture
and the Securities or, in respect of Liens on any Restricted Subsidiary's
property or assets, any Subsidiary Guarantee of such Restricted Subsidiary,
equally and ratably with (or senior in priority to in the case of Liens with
respect to Subordinated Obligations or Guarantor Subordinated Obligations, as
the case may be) the Indebtedness secured by such Lien for so long as such
Indebtedness is so secured.
SECTION 3.5. Limitation on Sale/Leaseback Transactions. The Company
will not, and will not permit any of its Restricted Subsidiaries to, enter into
any Sale/Leaseback Transaction unless:
(1) the Company or such Restricted Subsidiary could have Incurred
Indebtedness in an amount equal to the Attributable Indebtedness
in respect of such Sale/Leaseback Transaction pursuant to the
covenant described under Section 3.2; or
(2) the Sale/Leaseback Transaction is treated as an Asset Disposition
and all of the conditions of this Indenture described under
Section 3.7 (including the provisions concerning the application
of Net Available Cash) are satisfied with respect to such
Sale/Leaseback Transaction, treating all of the consideration
received in such Sale/Leaseback Transaction as Net Available Cash
for purposes of such covenant.
SECTION 3.6. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or consensual restriction on the ability of
any Restricted Subsidiary to:
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(1) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the
Company or any Restricted Subsidiary (it being understood that
the priority of any Preferred Stock in receiving dividends or
liquidating distributions prior to dividends or liquidating
distributions being paid on Common Stock shall not be deemed a
restriction on the ability to make distributions on Capital
Stock);
(2) make any loans or advances to the Company or any Restricted
Subsidiary (it being understood that the subordination of loans
or advances made to the Company or any Restricted Subsidiary to
other Indebtedness Incurred by the Company or any Restricted
Subsidiary shall not be deemed a restriction on the ability to
make loans or advances); or
(3) transfer any of its property or assets to the Company or any
Restricted Subsidiary (it being understood that such transfers
shall not include any type of transfer described in clause (1) or
(2) above).
The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date, including,
without limitation, this Indenture, the Securities, the
Exchange Securities, the Subsidiary Guarantees, and the
senior credit facility (and related documentation) in effect
on such date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary or a Person merged into a Restricted Subsidiary
pursuant to an agreement relating to any Capital Stock or
Indebtedness Incurred by a Restricted Subsidiary on or
before the date on which such Restricted Subsidiary was
acquired by the Company or a Restricted Subsidiary (other
than Capital Stock or Indebtedness Incurred as consideration
in, or to provide all or any portion of the funds 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 in contemplation of the transaction) and
outstanding on such date provided, that any such encumbrance
or restriction shall not extend to any assets or property of
the Company or any other Restricted Subsidiary other than
the assets and property so acquired and that, in the case of
Indebtedness, was permitted to be Incurred pursuant to this
Indenture;
(iii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement effecting a refunding,
replacement or refinancing of Indebtedness Incurred pursuant
to an agreement referred to in clause (i) or (ii) of this
paragraph or this
68
clause (iii) or contained in any amendment, restatement,
modification, renewal, supplement, refunding, replacement or
refinancing of an agreement referred to in clause (i) or
(ii) of this paragraph or this clause (iii); provided,
however, that the encumbrances and restrictions with respect
to such Restricted Subsidiary contained in any such
agreement are no less favorable in any material respect,
taken as a whole, to the Holders of the Securities than the
encumbrances and restrictions contained in such agreements
referred to in clauses (i) or (ii) of this paragraph on the
Issue Date or the date such Restricted Subsidiary became a
Restricted Subsidiary or was merged into a Restricted
Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this
covenant, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is
subject to a lease, license or similar contract, or the
assignment or transfer of any such lease, license or
other contract;
(B) contained in mortgages, pledges or other security
agreements permitted under this Indenture securing
Indebtedness of the Company or a Restricted Subsidiary
to the extent such encumbrances or restrictions
restrict the transfer of the property subject to such
mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting
dispositions of real property interests set forth in
any reciprocal easement agreements of the Company or
any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the
ordinary course of business and (B) Capitalized Lease
Obligations permitted under this Indenture, in each case,
that impose encumbrances or restrictions of the nature
described in clause (3) of the first paragraph of this
covenant on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or
any of its property or assets) imposed pursuant to an
agreement entered into for the direct or indirect sale or
disposition of the Capital Stock or assets of such
Restricted Subsidiary (or the property or assets that are
subject to such restriction) pending the closing of such
sale or disposition;
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(vii) any customary provisions in joint venture agreements
relating to joint ventures that are not Restricted
Subsidiaries and other similar agreements entered into in
the ordinary course of business;
(viii) restrictions on cash and net worth provisions in leases
and other agreements entered into by the Company or any
Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances and restrictions contained in contracts entered
into in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the
aggregate, detract from the value of, or from the ability of
the Company and the Restricted Subsidiaries to realize the
value of, property or assets of the Company or any
Restricted Subsidiary in any manner material to the Company
or any Restricted Subsidiary; and
(x) encumbrances or restrictions arising or existing by reason
of applicable law or any applicable rule, regulation or
order.
SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at least equal to the fair market value
(such fair market value to be determined on the date of
contractually agreeing to such Asset Disposition), as determined
in good faith by the Board of Directors of the Company (including
as to the value of all non-cash consideration) of the shares and
assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition
received by the Company or such Restricted Subsidiary, as the
case may be, is in the form of cash or Cash Equivalents, provided
that the following will be deemed to be cash:
(a) the assumption by the transferee of Indebtedness (other than
Subordinated Obligations or Disqualified Stock) of the
Company or Indebtedness of a Restricted Subsidiary (other
than Guarantor Subordinated Obligations or Disqualified
Stock of any Restricted Subsidiary that is a Subsidiary
Guarantor) and the release of the Company or such Restricted
Subsidiary from all liability on such Indebtedness in
connection with such Asset Disposition (in which case the
Company will, without further action, be deemed to have
applied such deemed cash to payment of Indebtedness in
accordance with clause (3)(a) below);
70
(b) securities, notes or other obligations received by the
Company or any Restricted Subsidiary from the transferee
that are within 30 days of receipt converted by the Company
or such Restricted Subsidiary into cash; and
(c) any Additional Assets received by the Company or such
Restricted Subsidiary in connection with such Asset
Disposition; 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 or any Restricted
Subsidiary, as the case may be, elects (or is required by
the terms of any Indebtedness), to prepay, repay or purchase
Indebtedness of the Company (other than any Disqualified
Stock or Subordinated Obligations) or Indebtedness of a
Restricted Subsidiary (other than any Disqualified Stock or
Guarantor Subordinated Obligations of a Restricted
Subsidiary that is a Subsidiary Guarantor) (in each case
other than Indebtedness owed to the Company or an Affiliate
of the Company) or any combination thereof within 365 days
from the later of the date of such Asset Disposition or the
receipt of such Net Available Cash; provided, however, that,
in connection with any prepayment, repayment or purchase of
Indebtedness pursuant to this clause (a), the Company or
such Restricted Subsidiary will retire such Indebtedness and
will cause the related commitment (if any) to be permanently
reduced in an amount equal to the principal amount so
prepaid, repaid or purchased; and
(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 or such Restricted Subsidiary elects, to
invest in Additional Assets within 365 days from the later
of the date of such Asset Disposition or the receipt of such
Net Available Cash (or within such 365 days, enter into a
definitive agreement with respect thereto that is
consummated within 545 days after the receipt of such Net
Available Cash);
provided that pending the final application of any such Net
Available Cash in accordance with clause (a) or clause (b) above,
the Company and its Restricted Subsidiaries may temporarily
reduce Indebtedness or otherwise invest such Net Available Cash
in any manner not prohibited by the Indenture.
Any Net Available Cash from Asset Dispositions that are not applied or
invested as provided in, and within the time period set forth in, the preceding
paragraph will be deemed to constitute "Excess Proceeds." On the day that the
aggregate amount of Excess Proceeds exceeds
71
$15.0 million, the Issuers will be required to make an offer ("Asset Disposition
Offer") to all Holders of Securities and to the extent required by the terms of
other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness
outstanding with similar provisions requiring an Issuer to make an offer to
purchase such Pari Passu Indebtedness with the proceeds from any Asset
Disposition ("Pari Passu Notes") to purchase the maximum principal amount of
Securities and any such Pari Passu Notes to which the Asset Disposition Offer
applies that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount of the Securities and
Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in
accordance with the procedures set forth in the Indenture or the agreements
governing the Pari Passu Notes, as applicable, in each case in the applicable
principal amounts and integral multiples thereof. To the extent that the
aggregate amount of Securities and Pari Passu Notes so validly tendered and not
properly withdrawn pursuant to an Asset Disposition Offer is less than the
Excess Proceeds, the Issuers may use any remaining Excess Proceeds for general
corporate purposes, subject to other covenants contained in the Indenture. If
the aggregate principal amount of Securities surrendered by Holders thereof and
other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds
the amount of Excess Proceeds, the Trustee shall select the Securities and the
Issuers or the applicable agent or trustee for the Pari Passu Notes to be
purchased on a pro rata basis on the basis of the aggregate principal amount of
tendered Securities and Pari Passu Notes. Upon completion of such Asset
Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
The Asset Disposition Offer will remain open for a period of 20
Business Days following its commencement, except to the extent that a longer
period is required by applicable law (the "Asset Disposition Offer Period"). No
later than five Business Days after the termination of the Asset Disposition
Offer Period (the "Asset Disposition Purchase Date"), the Company shall purchase
the principal amount of Securities and Pari Passu Notes required to be purchased
pursuant to this covenant (the "Asset Disposition Offer Amount") or, if less
than the Asset Disposition Offer Amount has been so validly tendered, all
Securities and Pari Passu Notes validly tendered in response to the Asset
Disposition Offer.
If the Asset Disposition Purchase Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued and unpaid interest will be paid to the Person in whose name a Security
is registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Securities pursuant to the Asset
Disposition Offer.
On or before the Asset Disposition Purchase Date, the Issuers will, to
the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Notes
or portions of Securities and Pari Passu Notes so validly tendered and not
properly withdrawn pursuant to the Asset Disposition Offer, or if less than the
Asset Disposition Offer Amount has been validly tendered and not properly
withdrawn, all Securities and Pari Passu Notes so validly tendered and not
properly withdrawn, in each case in the applicable principal amounts and
integral multiples of $1,000. Each of the Issuers will deliver to the Trustee an
Officers' Certificate stating that such Securities or portions thereof were
accepted for payment by the Issuers in accordance with the terms of this
covenant and, in addition, each of the Issuers will deliver all certificates and
notes required, if any, by the agreements governing the Pari Passu Notes. The
Issuers or the Paying Agent, as the case may be,
72
will promptly (but in any case not later than five Business Days after
termination of the Asset Disposition Offer Period) mail or deliver to each
tendering Holder of Securities or holder or lender of Pari Passu Notes, as the
case may be, an amount equal to the purchase price of the Securities or Pari
Passu Notes so validly tendered and not properly withdrawn by such holder or
lender, as the case may be, and accepted by the Issuers for purchase, and the
Issuers will promptly issue a new Security, and the Trustee, upon delivery of an
Officers' Certificate from each of the Issuers, will authenticate and mail or
deliver such new Security to such Holder, in a principal amount equal to any
unpurchased portion of the Security surrendered; provided that each such new
Security will be in a principal amount of $1,000 or an integral multiple of
$1,000. In addition, the Issuers will take any and all other actions required by
the agreements governing the Pari Passu Notes. Any Security not so accepted will
be promptly mailed or delivered by the Issuers to the Holder thereof. The
Issuers will publicly announce the results of the Asset Disposition Offer on the
Asset Disposition Purchase Date.
The Issuers will comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Issuers will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this Indenture by virtue of any conflict.
SECTION 3.8. Limitation on Affiliate Transactions. The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into or conduct any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
Affiliate of the Company (an "Affiliate Transaction") unless:
(1) the terms of such Affiliate Transaction are no less favorable to
the Company or such Restricted Subsidiary, as the case may be,
than those that would reasonably be expected to be obtained in a
comparable transaction at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate;
(2) in the event such Affiliate Transaction involves an aggregate
consideration in excess of $5 million, the terms of such
transaction have been approved by a majority of the members of
the Board of Directors of the Company and by a majority of the
members of such Board having no personal stake in such
transaction, if any (and such majority or majorities, as the case
may be, determines that such Affiliate Transaction satisfies the
criteria in clause (1) above); and
(3) in the event such Affiliate Transaction involves an aggregate
consideration in excess of $20 million, the Company has received
a written opinion from an independent investment banking,
accounting or appraisal firm of nationally recognized standing
that such Affiliate Transaction is not materially less favorable
than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate.
73
The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted Investment)
permitted to be made pursuant to Section 3.3;
(2) any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of,
employment agreements and other compensation arrangements,
options to purchase Capital Stock of the Company, restricted
stock plans, long-term incentive plans, stock appreciation rights
plans, participation plans or similar employee benefits plans
and/or indemnity provided on behalf of officers and employees
approved by the Board of Directors of the Company;
(3) loans or advances to employees, officers or directors of the
Company or any Restricted Subsidiary of the Company in the
ordinary course of business consistent with past practices, in an
aggregate amount not in excess of $2 million with respect to all
loans or advances made since the Issue Date (without giving
effect to the forgiveness of any such loan); provided, however,
that the Company and its Subsidiaries shall comply in all
material respects with applicable law;
(4) any transaction between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries, and Guarantees issued by the
Company or a Restricted Subsidiary for the benefit of the Company
or a Restricted Subsidiary, as the case may be, in accordance
with Section 3.2;
(5) the payment of reasonable and customary fees paid to, and
indemnity provided on behalf of, directors of the Company or any
Restricted Subsidiary;
(6) the existence of, and the performance of obligations of the
Company or any of its Restricted Subsidiaries under the terms of
any agreement to which the Company or any of its Restricted
Subsidiaries is a party as of or on the Issue Date, as these
agreements may be amended, modified, supplemented, extended or
renewed from time to time; provided, however, that any future
amendment, modification, supplement, extension or renewal entered
into after the Issue Date will be permitted to the extent that
its terms are not more disadvantageous to the Holders of the
Securities than the terms of the agreements in effect on the
Issue Date;
(7) transactions with customers, clients, suppliers or purchasers or
sellers of goods or services, in each case in the ordinary course
of the business of the Company and its Restricted Subsidiaries
and otherwise in compliance with the terms of this Indenture;
provided that in the reasonable determination of the members of
the Boards of Directors or senior management of the Company, such
transactions are on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than
74
those that would reasonably be expected to have been obtained in
a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person;
(8) any issuance or sale of Capital Stock (other than Disqualified
Stock) to Affiliates of the Company and the granting of
registration and other customary rights in connection therewith;
(9) Restricted Payments to affiliates of the Company permitted under
Section 3.3; and
(10) any transaction or series of transactions in an aggregate amount
not in excess of $250,000.
SECTION 3.9. Change of Control. If a Change of Control occurs, unless
any of the Issuers has exercised its right to redeem all of the Securities as
described under Article V, each Holder will have the right to require the
Issuers to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount of the Securities 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).
Within 30 days following any Change of Control, unless any of the
Issuers has exercised its right to redeem all of the Securities pursuant to
Article V, the Issuers will mail a notice (the "Change of Control Offer") to
each Holder, with a copy to the Trustee, stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Issuers to purchase all or any portion
of such Holder's Securities at a purchase price in cash equal to
101% of the principal amount of such Securities plus accrued and
unpaid interest, if any, to the date of purchase (subject to the
right of Holders of record on a record date to receive interest
on the relevant interest payment date) (the "Change of Control
Payment");
(2) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed) (the
"Change of Control Payment Date"); and
(3) the procedures determined by the Issuers, consistent with this
Indenture, that a Holder must follow in order to have its
Securities repurchased.
On the Change of Control Payment Date, the Issuers will, to the extent
lawful:
(1) accept for payment all Securities or portions of Securities (in
integral multiples of $1,000) properly tendered pursuant to the
Change of Control Offer;
75
(2) deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of
Securities so tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities so
accepted together with an Officers' Certificate stating the
aggregate principal amount of Securities or portions of
Securities being purchased by the Issuers.
The Paying Agent will promptly transmit to each Holder of Securities
so tendered the Change of Control Payment for such Securities, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Security equal in principal amount to any unpurchased
portion of the Securities surrendered, if any; provided that each such new
Security shall be in a principal amount of $1,000 or an integral multiple
thereof.
If the Change of Control Payment Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued and unpaid interest, if any, to the Change of Control Payment Date will
be paid to the Person in whose name a Security is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender pursuant to the Change of Control Offer.
Prior to mailing a Change of Control Offer, and as a condition to such
mailing (i) the requisite holders of each issue of Indebtedness issued under an
indenture or other agreement that may be violated by such payment shall have
consented to such Change of Control Offer being made and waived the event of
default, if any, caused by the Change of Control or (ii) the Issuers will repay
all outstanding Indebtedness issued under an indenture or other agreement that
may be violated by a payment to the Holders of Securities under a Change of
Control Offer or the Issuers must offer to repay all such Indebtedness, and make
payment to the holders of such Indebtedness that accept such offer, and obtain
waivers of any event of default from the remaining holders of such Indebtedness.
The Issuers covenant to effect such repayment or obtain such consent within 30
days following any Change of Control, it being a default of the Change of
Control provisions of this Indenture if the Issuers fail to comply with such
covenant. A default under this Indenture will result in a cross-default under
the senior credit facility.
The Issuers will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Issuers and purchases all Securities validly tendered and not withdrawn under
such Change of Control Offer.
The Issuers will comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Indenture, the Issuers will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations described in this Indenture by virtue of the
conflict.
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SECTION 3.10. SEC Reports. Until the Company becomes subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will make available to the Trustee and the registered Holders of the Securities
the annual reports and the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act with
respect to U.S. companies that are subject to such reporting requirements within
the time periods specified therein or in the relevant forms.
If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
the preceding paragraph shall include a reasonably detailed presentation, either
on the face of the financial statements or in the footnotes to the financial
statements and in Management's Discussion and Analysis of Results of Operations
and Financial Condition, of the financial condition and results of operations of
the Company and its Restricted Subsidiaries.
In addition, the Issuers and the Subsidiary Guarantors have agreed
that they will make available to the Holders and to prospective investors, upon
the request of such Holders, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act so long as the Securities are not
freely transferable under the Securities Act. For purposes of this covenant, the
Issuers and the Subsidiary Guarantors will be deemed to have furnished the
reports to the Trustee and the Holders of Securities as required by this
covenant if it has filed such reports with the SEC via the XXXXX filing system
and such reports are publicly available.
The filing requirements set forth above for the applicable period may
be satisfied by the Company prior to the commencement of the Registered Exchange
Offer or the effectiveness of the Shelf Registration Statement by the filing
with the SEC of the exchange offer registration statement and/or Shelf
Registration Statement, and any amendments thereto, with such financial
information that satisfies Regulation S-X of the Securities Act; provided that
this paragraph shall not supersede or in any manner suspend or delay the
Company's reporting obligations set forth in the first three paragraphs of this
covenant.
In the event that any direct or indirect parent company of the Company
becomes a guarantor of the Securities, the Company may satisfy its obligations
under this covenant by furnishing financial information relating to such parent;
provided that (x) such financial statements are accompanied by consolidating
financial information for such parent, the Company, the Subsidiary Guarantors
and the Subsidiaries of the Company that are not Subsidiary Guarantors in the
manner prescribed by the SEC and (y) such parent is not engaged in any business
in any material respect other than incidental to its ownership, directly or
indirectly of the Capital Stock of the Company.
SECTION 3.11. Future Subsidiary Guarantors. After the Issue Date, the
Company will cause each Domestic Subsidiary or Foreign Subsidiary that is
neither a CFC nor directly or indirectly owned by a CFC and that is created or
acquired by the Company to execute and deliver to the Trustee a Subsidiary
Guarantee pursuant to which such Subsidiary Guarantor in a supplemental
Indenture will unconditionally Guarantee, on a joint and several basis, the full
and prompt payment of the principal of, premium, if any and interest on the
Securities on a senior basis.
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The obligations of each Subsidiary Guarantor will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor (including, without limitation, any
guarantees under the Credit Facility) and after giving effect to any collections
from or payments made by or on behalf of any other Subsidiary Guarantor in
respect of the obligations of such other Subsidiary Guarantor under its
Subsidiary Guarantee or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law.
SECTION 3.12. Maintenance of Office or Agency. The Issuers shall
maintain an office or agency where the Securities may be presented or
surrendered for payment, where, if applicable, the Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Issuers in respect of the Securities and this Indenture may be served.
The agency of Xxxxx Fargo Bank, National Association (the "Agent") currently
located at Sixth and Marquette, MAC N9303-120, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services, shall be such office or agency of the
Issuers, unless the Issuers shall designate and maintain some other office or
agency for one or more of such purposes. The Issuers shall give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Agent of the Trustee, and the Issuers hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Issuers may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind any such designation. The
Issuers shall give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such other office or agency.
SECTION 3.13. Corporate Existence. Except as otherwise provided in
this Article III, Article IV and Section 10.2 (b), each of the Issuers shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its limited liability company or corporate existence, as applicable, and
the corporate, partnership, limited liability company or other existence of each
Subsidiary Guarantor in accordance with their respective organizational
documents (as the same may be amended from time to time) and the rights (charter
and statutory) licenses and franchises of the Issuers and each such Subsidiary
Guarantor; provided, however, that the Issuers shall not be required to preserve
any such right, license or franchise or the corporate, partnership, limited
liability company or other existence of any Subsidiary Guarantor if the Board of
Directors of the Issuers shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Issuers and each of its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and
will not be, disadvantageous in any material respect to the Holders; provided,
further, that the foregoing shall not prohibit a sale, transfer, or conveyance
of a Subsidiary Guarantor or any of its assets in compliance with the terms of
this Indenture.
SECTION 3.14. Payment of Taxes and Other Claims. The Issuers shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all
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material taxes, assessments and governmental charges levied or imposed upon the
Issuers or any Subsidiary Guarantor or upon the income, profits or property of
the Issuers or any Subsidiary Guarantor and (ii) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a material
liability or lien upon the property of the Issuers or any Subsidiary; provided,
however, that the Issuers shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which appropriate reserves, if necessary (in the
good faith judgment of management of the Issuers), are being maintained in
accordance with GAAP or where the failure to effect such payment will not be
disadvantageous to the Holders.
SECTION 3.15. Payments for Consent. Neither the Company nor any of its
Restricted Subsidiaries will, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fees or otherwise, to any Holder
of any Securities 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 or is paid to all Holders of the Securities
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or amendment.
SECTION 3.16. Compliance Certificate. The Issuers 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 Officers of the Issuers they would normally have
knowledge of any Default or Event of Default and whether or not the signers know
of any Default or Event of Default that occurred during the previous fiscal
year. If they do, the certificate shall describe the Default or Event of
Default, its status and the action the Issuers is taking or proposes to take
with respect thereto. The Issuers also shall comply with TIA Section 314(a)(4).
SECTION 3.17. Further Instruments and Acts. Upon request of the
Trustee, the Issuers shall 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.
SECTION 3.18. Limitation on Lines of Business. The Company shall not,
and shall not permit any Restricted Subsidiary to, engage in any business other
than a Related Business.
SECTION 3.19. Statement by Officers as to Default. The Issuers shall
deliver to the Trustee, as soon as possible and in any event within 30 days
after the occurrence of any Event of Default or an event which, with notice or
the lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or Default, its
status and the actions which the Issuers are taking or propose to take with
respect thereto.
SECTION 3.20. Restrictions on Activities. Xxxxxxx & Xxxxxxxxx Corp.
will not hold any material assets, become liable for any material obligations or
engage in any significant business activities; provided, that Xxxxxxx &
Xxxxxxxxx Corp. may be a co-obligor or guarantor with respect to Indebtedness if
the Company is an obligor on such Indebtedness and the net
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proceeds of such Indebtedness are received by the Company, Xxxxxxx & Xxxxxxxxx
Corp. or one or more Subsidiary Guarantors. At any time after the Company is a
corporation, Xxxxxxx & Xxxxxxxxx Corp. may consolidate or merge with or into the
Company or any Restricted Subsidiary.
ARTICLE IV
SUCCESSOR COMPANY
SECTION 4.1. Merger and Consolidation. The Company will not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company") will be a corporation, limited liability company or
limited liability partnership organized and existing under the
laws of the United States of America, any State of the United
States or the District of Columbia and the Successor Company (if
not the Company) will expressly assume, by supplemental
indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture and will expressly
assume, by written agreement all the obligations of the Company
under the Registration Rights Agreement;
(2) immediately after giving effect to such transaction (and treating
any Indebtedness that becomes an obligation of the Successor
Company or any Subsidiary of the Successor Company as a result of
such transaction as having been Incurred by the Successor Company
or such Subsidiary at the time of such transaction), no Default
or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Successor Company would be able to Incur at least $1.00 of
additional Indebtedness pursuant to the first paragraph of
Section 3.2 or the Consolidated Coverage Ratio for the Successor
Company and its Restricted Subsidiaries would be greater than
such ratio for the Company and its Restricted Subsidiaries
immediately prior to such transaction;
(4) each Subsidiary Guarantor (unless it is the other party to the
transactions above, in which case clause (1) shall apply) shall
have by supplemental indenture confirmed that its Subsidiary
Guarantee shall apply to such Person's obligations in respect of
this Indenture and the Securities and shall have by written
agreement confirmed that its obligations under the Registration
Rights Agreement shall continue to be in effect; and
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(5) 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.
For purposes of this Section 4.1, the sale, lease, conveyance, assignment,
transfer, or other disposition of all or substantially all of the properties and
assets of one or more Subsidiaries of the Company, which properties and assets,
if held by the Company instead of such Subsidiaries, would constitute all or
substantially all of the properties and assets of the Company on a consolidated
basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
The predecessor company shall be released from its obligations under
the Indenture and the Successor Company will succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture,
but, in the case of a lease of all or substantially all its assets, the
predecessor company will not be released from the obligation to pay the
principal of and interest on the Securities.
Notwithstanding the preceding clause (3), (x) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (y) the Company may merge with an
Affiliate incorporated solely for the purpose of reincorporating the Company in
another jurisdiction.
In addition, the Company will not permit any Subsidiary Guarantor to
consolidate with, merge with or into any Person (other than another Subsidiary
Guarantor or the Company) and will not permit the conveyance, transfer or lease
of all or substantially all of the assets of any Subsidiary Guarantor (other
than to another Subsidiary Guarantor or the Company) unless:
(1) (a) if such entity remains a Subsidiary Guarantor, the resulting,
surviving or transferee Person will be a corporation,
partnership, trust or limited liability company organized and
existing under the laws of the United States of America, any
State of the United States or the District of Columbia; (b)
immediately after giving effect to such transaction (and treating
any Indebtedness that becomes an obligation of the resulting,
surviving or transferee Person or any Restricted Subsidiary as a
result of such transaction as having been Incurred by such Person
or such Restricted Subsidiary at the time of such transaction),
no Default of Event of Default shall have occurred and be
continuing; and (c) the Company will 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 the Indenture; and
(2) the transaction is made in compliance with Section 3.7 (it being
understood that only such portion of the Net Available Cash as is
required to be applied on the date of such transaction in
accordance with the terms of this Indenture needs to be applied
in accordance therewith at such time) and this Section 4.1.
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ARTICLE V
REDEMPTION OF SECURITIES
SECTION 5.1. Redemption. The Securities may be redeemed, as a whole or
from time to time in part, subject to the conditions and at the redemption
prices specified in paragraph 5 of the form of Securities set forth in Exhibit A
hereto, which is hereby incorporated by reference and made a part of this
Indenture, together with accrued and unpaid interest, if any, to the Redemption
Date.
SECTION 5.2. Applicability of Article. Redemption of Securities at the
election of the Issuers or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.
SECTION 5.3. Election to Redeem; Notice to Trustee. The election of
the Issuers to redeem any Securities pursuant to Section 5.1 shall be evidenced
by a Board Resolution of each of the Issuers. In case of any redemption at the
election of the Issuers, each of the Issuers shall, upon not later than the
earlier of the date that is 45 days prior to the Redemption Date fixed by the
Issuers or the date on which notice is given to the Holders (except as provided
in Section 5.5 or unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 5.4.
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities are to be redeemed at any time pursuant to an
optional redemption, the particular Securities to be redeemed shall be selected
not more than 40 days prior to the Redemption Date by the Trustee (unless a
shorter period shall be satisfactory to the Trustee), from the outstanding
Securities not previously called for redemption, in compliance with the
requirements of the principal national securities exchange, if any, on which
such Securities are listed, or, if such Securities are not so listed, on a pro
rata basis among the classes of Securities, by lot or by such other method as
the Trustee in its sole discretion shall deem fair and appropriate (and in such
manner as complies with applicable legal requirements) and which may provide for
the selection for redemption of portions of the principal of the Securities;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Issuers in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the method it has chosen for the selection of Securities
and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
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SECTION 5.5. Notice of Redemption. Notice of redemption shall be
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed at such Holder's registered address. At
the Issuers' request, the Trustee shall give notice of redemption in the
Issuers' name and at the Issuers' expense; provided, however, that the Issuers
shall deliver to the Trustee, at least 45 days prior to the Redemption Date
(unless a shorter period shall be satisfactory to the Trustee), an Officers'
Certificate requesting that the Trustee give such notice at the Issuers' expense
and the form of notice that shall include the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the redemption price and the amount of accrued interest to the
Redemption Date payable as provided in Section 5.7, if any,
(3) if less than all outstanding Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the redemption price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
5.7) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and, unless the Issuers default in making the
redemption payment, that interest on Securities called for redemption (or
the portion thereof) will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the redemption price and accrued interest, if any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price,
(9) the CUSIP, Common Code and ISIN numbers, if applicable, and that
no representation is made as to the accuracy or correctness of the CUSIP,
Common Code and ISIN numbers, if applicable, if any, listed in such notice
or printed on the Securities, and
(10) the paragraph of the Securities pursuant to which the Securities
are to be redeemed.
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SECTION 5.6. Deposit of Redemption Price. Prior to 10:00 a.m., New
York City time, on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if any of the Issuers or any of the Issuers'
Subsidiaries is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.4) an amount of money sufficient to pay the redemption
price of, and accrued interest on, all the Securities which are to be redeemed
on that date, other than Securities or portions of Securities called for
redemption that are beneficially owned by any of the Issuers and have been
delivered by any of the Issuers to the Trustee for cancellation.
SECTION 5.7. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities or portions of
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the redemption price therein specified (together with accrued
interest, if any, to the Redemption Date), and on and after such date (unless
the Company shall default in the payment of the redemption price and accrued
interest) such Securities shall cease to bear interest and the only right of the
Holders thereof will be to receive payment of the redemption price and, subject
to the next sentence, unpaid interest on such Securities to the Redemption Date.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the redemption price,
together with accrued interest, if any, to the Redemption Date (subject to the
rights of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date).
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the unpaid principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Securities.
SECTION 5.8. Securities Redeemed in Part. Any Security which is to be
redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at the office or agency of the Issuers maintained for such purpose
pursuant to Section 3.12 (with, if the Issuers or the Trustee so require, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuers and the Trustee duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing), and the Issuers shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such
Security at the expense of the Issuers, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered, provided, that each such new Security will be in a
principal amount of $1,000 or in integral multiples in excess thereof.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. Each of the following is an "Event of
Default":
(1) default in any payment of interest or additional interest (as
required by the Registration Rights Agreement) on any note when
due, continued for 30 days;
(2) default in the payment of principal of or premium, if any, on any
Security when due at its Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or
otherwise;
(3) failure by the Company to comply with its obligations under
Section 4.1;
(4) failure by the Company to comply for 30 days after notice as
provided below with any of its obligations under the covenants
described in Section 3.9 above or the covenants described under
Sections 3.2, 3.3. 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.11, 3.15, 3.18
and 3.20 above (in each case, other than a failure to purchase
Securities which constitutes an Event of Default under clause (2)
above);
(5) failure by the Company to comply for 60 days after notice as
provided below with its other agreements contained in this
Indenture;
(6) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), other than
Indebtedness owed to the Company or a Restricted Subsidiary,
whether such Indebtedness or guarantee now exists, or is created
after the Issue Date, which default:
(a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness
("payment default"); or
(b) results in the acceleration of such Indebtedness prior to
its maturity (the "cross acceleration provision");
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a payment default or the maturity of
which has been so accelerated, aggregates $10 million or more;
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(7) where the Company or a Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest
audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a custodian of it or for all
or substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors;
or where a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary in an
involuntary case;
(b) appoints a custodian of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary or for
all or substantially all of the property of the Company or
any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant
Subsidiary; or
(c) orders the liquidation of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days;
(8) failure by the Company or any Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest
audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant
Subsidiary to pay final judgments aggregating in excess of $10
million (net of any amounts that a reputable and creditworthy
insurance company has acknowledged liability
86
for in writing), which judgments are not paid, discharged or
stayed for a period of 60 days; or
(9) any Subsidiary Guarantee of a Significant Subsidiary ceases to be
in full force and effect (except as contemplated by the terms of
this Indenture) or is declared null and void in a judicial
proceeding or any Subsidiary Guarantor denies or disaffirms its
obligations under this Indenture or its Subsidiary Guarantee.
However, a default under clauses (4) and (5) of this Section will not constitute
an Event of Default until the Trustee or the Holders of 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 in clauses (4) and (5) of
this Section after receipt of such notice.
SECTION 6.2. Acceleration. If an Event of Default (other than an Event
of Default described in clause (7) above) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the outstanding Securities by notice to the Company and the Trustee, may, and
the Trustee at the request of such Holders shall, declare the principal of,
premium, if any, and accrued and unpaid interest, if any, on all the Securities
to be due and payable. Upon such a declaration, such principal, premium and
accrued and unpaid interest will be due and payable immediately. In the event of
a declaration of acceleration of the Securities because an Event of Default
described in clause (6) above has occurred and is continuing, the declaration of
acceleration of the Securities shall be automatically annulled if the default
triggering such Event of Default pursuant to clause (6) shall be remedied or
cured by the Company or a Restricted Subsidiary or waived by the holders of the
relevant Indebtedness within 20 days after the declaration of acceleration with
respect thereto and if (1) the annulment of the acceleration of the Securities
would not conflict with any judgment or decree of a court of competent
jurisdiction and (2) all existing Events of Default, except nonpayment of
principal, premium or interest on the Securities that became due solely because
of the acceleration of the Securities, have been cured or waived. If an Event of
Default described in clause (7) above occurs and is continuing, the principal
of, premium, if any, and accrued and unpaid interest on all the Securities will
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holders.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of (or premium, if any) 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.
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SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in
principal amount of the outstanding Securities may waive all past defaults
(except with respect to nonpayment of principal, premium or interest) and
rescind any such acceleration with respect to the Securities and its
consequences if (1) rescission would not conflict with any judgment or decree of
a court of competent jurisdiction and (2) all existing Events of Default, other
than the nonpayment of the principal of, premium, if any, and interest on the
Securities that have become due solely by such declaration of acceleration, have
been cured or waived.
SECTION 6.5. Control by Majority. The Holders of a majority in
principal amount of the outstanding 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 that
the Trustee determines is unduly prejudicial to the rights of any other Holder
or that would involve the Trustee in personal liability. Prior to taking any
action hereunder, the Trustee will 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 6.6. Limitation on Suits. Subject to the provisions of this
Indenture relating to the duties of the Trustee, if an Event of Default occurs
and is continuing, the Trustee shall be under no obligation to exercise any of
the rights or powers under this Indenture at the request or direction of any of
the Holders unless such Holders have offered to the Trustee reasonable indemnity
or security satisfactory to it against any loss, liability or expense. Except to
enforce the right to receive payment of principal, premium, if any, or interest
when due, no Holder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) such Holder has previously given the Trustee notice that an Event
of Default is continuing;
(2) Holders of at least 25% in principal amount of the outstanding
Securities have requested in writing that the Trustee pursue the remedy;
(3) such Holder or Holders have offered the Trustee reasonable
security or indemnity satisfactory to it against any loss, liability or
expense;
(4) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity;
and
(5) the Holders of a majority in principal amount of the outstanding
Securities have not given the Trustee a direction that, in the opinion of
the Trustee, is inconsistent with such request within such 60-day period.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture (including, without limitation, Section 6.6),
the right of any Holder to receive payment of principal of, premium, if any, or
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.
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SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in clauses (1) or (2) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against any of the Issuers 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 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Issuers, its Restricted Subsidiaries or its or their
respective creditors or properties and, unless prohibited by law or applicable
regulations, may be entitled and empowered to participate as a member of any
official committee of creditors appointed in such matter and 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 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 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, 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
THIRD: to the Issuers.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section. At least 15 days before such record date, the
Issuers shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by
Holders of more than 25% in outstanding principal amount of the Securities.
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ARTICLE VII
TRUSTEE
SECTION 7.1. 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, opinions or orders
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which
by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such certificates and opinions to
determine whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(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 6.5.
(d) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) 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.
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(g) 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.
(h) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuers shall be sufficient if
signed by an Officer of the Issuers.
(i) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it, in its sole discretion,
against the costs, expenses (including reasonable attorneys' fees and expenses)
and liabilities that might be incurred by it in compliance with such request or
direction.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document. The Trustee shall receive and retain
financial reports and statements of the Issuers as provided herein, but shall
have no duty to review or analyze such reports or statements to determine
compliance under covenants or other obligations of the Issuers.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/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 an
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers, unless the Trustee's conduct constitutes willful misconduct or
negligence.
(e) The Trustee may consult with counsel of its selection, 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 of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the corporate trust office of the Trustee specified
in Section 11.2, and such notice references the Securities and this Indenture.
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(g) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(h) The Trustee shall not be deemed to have knowledge of any fact or
matter unless such fact or matter is known to a Trust Officer of the Trustee.
(i) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may request, and in the absence of bad faith
or willful misconduct on its part, rely upon an Officers' Certificate and an
Opinion of Counsel.
SECTION 7.3. 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 Issuers, Subsidiary Guarantors or their
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. In
addition, the Trustee shall be permitted to engage in transactions with the
Issuers; provided, however, that if the Trustee acquires any conflicting
interest, as defined in TIA Section 310(b), the Trustee must (i) eliminate such
conflict within 90 days of acquiring such conflicting interest, (ii) apply to
the SEC for permission to continue acting as Trustee or (iii) resign.
SECTION 7.4. 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, shall not be accountable for the Issuers' use
of the proceeds from the sale of the Securities, shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee or any money paid to the Issuers pursuant to the terms of this Indenture
and shall not be responsible for any statement of the Issuers 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 7.5. Notice of Defaults. If a Default occurs and is continuing
and is known to the Trustee, the Trustee must mail to each Holder notice of the
Default within 90 days after it occurs. Except in the case of a Default in the
payment of principal of, premium, if any, or interest on any Security, the
Trustee may withhold notice if and so long as a Trust Officer or a committee of
Trust Officers of the Trustee in good faith determines that withholding notice
is in the interests of the Holders. In addition, the Company is required to
deliver to the Trustee, within 120 days after the end of each fiscal year, a
certificate indicating whether the signers thereof know of any Default that
occurred during the previous year. The Company also is required to deliver to
the Trustee, within 30 days after the occurrence thereof, written notice of any
events which would constitute certain Defaults, their status and what action the
Company is taking or proposing to take in respect thereof.
SECTION 7.6. Reports by Trustee to Holders. As promptly as practicable
after each May 15 following the date of this Indenture beginning May 15, 2007,
and in any event prior
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to June 15 in each year, the Trustee shall mail to each Securityholder a brief
report dated as of such mail date that complies with TIA Section 313(a) if and
to the extent required thereby. The Trustee also shall comply with TIA Section
313(b) and TIA Section 313(c).
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 Issuers agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof and the Trustee shall comply with TIA Section 313(d).
SECTION 7.7. Compensation and Indemnity. The Issuers shall pay to the
Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder as the Issuers and the Trustee shall from time
to time agree in writing. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Issuers shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Securityholders and reasonable fees and expenses of
counsel retained by the Trustee, 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 Issuers shall indemnify the Trustee against any and all loss,
liability, damages, claims or expense (including reasonable attorneys' fees and
expenses) incurred by it without negligence, bad faith or willful misconduct on
its part in connection with the administration of this trust and the performance
of its duties hereunder, including the costs and expenses of enforcing this
Indenture (including this Section 7.7) and of defending itself against any
claims (whether asserted by any Securityholder, the Issuers or otherwise). The
Trustee shall notify the Issuers promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the
Issuers of its obligations hereunder. The Issuers shall defend the claim and the
Trustee shall provide reasonable cooperation at the Issuers' expense in the
defense. The Trustee may have separate counsel and the Issuers shall pay the
fees and expenses of such counsel, provided that the Issuers shall not be
required to pay such fees and expenses if they assume the Trustee's defense,
and, in the reasonable judgment of outside counsel to the Trustee, there is no
conflict of interest between the Issuers and the Trustee in connection with such
defense. Notwithstanding the foregoing, the Issuers and the Subsidiary
Guarantors need not reimburse any expense or indemnify against any loss,
liability or expense which is finally determined by a court of competent
jurisdiction to have been incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
To secure the Issuers' 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. Such lien shall survive the
satisfaction and discharge of this Indenture. The Trustee's right to receive
payment of any amounts due under this Section 7.7 shall not be subordinate to
any other liability or Indebtedness of the Issuers.
The Issuers' payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default
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specified in clause (7) of Section 6.1 with respect to the Issuers, the expenses
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Issuers in writing. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
removed Trustee in writing and may appoint a successor Trustee with the Issuers'
written consent, which consent will not be unreasonably withheld. The Issuers
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 as trustee
hereunder.
If the Trustee resigns or is removed by the Issuers or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee as described in the preceding
paragraph, or if a vacancy exists in the office of the Trustee for any reason
(the Trustee in such event being referred to herein as the retiring Trustee),
the Issuers shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. 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, upon payment of its charges
hereunder, shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.7.
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
at least 25% in principal amount of the Securities may petition, at the Issuers'
expense, any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, unless the Trustee's
duty to resign is stayed as provided in TIA Section 310(b), any Securityholder,
who has been a bona fide Holder of a Security for at least six months, 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 Issuers' obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. 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
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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; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or conversion.
SECTION 7.10. Eligibility; Disqualification. This Indenture shall
always have a Trustee that satisfies the requirements of TIA Section 310(a)(1),
(2) and (5) in every respect. The Trustee shall have a combined capital and
surplus of at least $100 million 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 Issuers 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 the Issuers.
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.
SECTION 7.12. Trustee's Application for Instruction from the Issuers.
Any application by the Trustee for written instructions from the Issuers may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Issuers actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
SECTION 7.13. Paying Agents. The Issuers shall cause each Paying Agent
other than the Trustee to execute and deliver to it and the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.13:
(1) that it will hold all sums held by it as agent for the payment of
principal of, or premium, if any, or interest on, the Securities (whether
such sums have been paid to
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it by the Issuers or by any obligor on the Securities) in trust for the
benefit of Holders of the Securities or the Trustee;
(2) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(3) that it will give the Trustee written notice within three Business
Days of any failure of the Issuers (or by any obligor on the Securities) in
the payment of any installment of the principal of, premium, if any, or
interest on, the Securities when the same shall be due and payable.
ARTICLE VIII
DISCHARGE OF INDENTURE;
DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance. (a)
Subject to Section 8.1(c), when (i)(x) the Issuers deliver to the Trustee all
outstanding Securities (other than Securities replaced pursuant to Section 2.9)
for cancellation or (y) all outstanding Securities not theretofore delivered for
cancellation have become due and payable, whether at maturity or upon redemption
or will become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption pursuant to Article V hereof and the Issuers
or any Subsidiary Guarantor irrevocably deposits or causes to be deposited with
the Trustee as trust funds in trust solely for the benefit of the Holders money
in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent accountants, without consideration of any reinvestment of interest
to pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation for principal, premium, if any, and
accrued interest to the date of maturity or redemption; (ii) no Default or Event
of Default shall occur as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Issuers or any Subsidiary Guarantor is a party or by
which the Issuers or any Subsidiary Guarantor is bound; (iii) the Issuers or any
Subsidiary Guarantor has paid or caused to be paid all sums payable under this
Indenture and the Securities; and (iv) the Issuers has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited money
toward the payment of such Securities at maturity or the Redemption Date, as the
case may be, then upon demand of the Issuers (accompanied by an Officers'
Certificate and an Opinion of Counsel stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this Indenture
have been complied with) this Indenture shall cease to be of further effect with
respect to the Securities and the Trustee shall acknowledge satisfaction and
discharge of this Indenture, at the cost and expense of the Issuers.
(b) Subject to Sections 8.1(c) and 8.2, any of the Issuers at any time
may terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance
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option"), and after giving effect to such legal defeasance, any omission to
comply with such obligations shall no longer constitute a Default or Event of
Default or (ii) their obligations under Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7,
3.8, 3.9, 3.10, 3.11, 3.12, 3.14, 3.15, 3.16, 3.18, 3.19, 3.20 and 4.1(3), and
the Issuers may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply with such
covenants shall no longer constitute a Default or an Event of Default under
Sections 6.1(3) (only with respect to Section 4.1(3)), 6.1(4), 6.1(5), 6.1(6),
6.1(7) (with respect to Significant Subsidiaries), 6.1(8) and 6.1(9), and the
events specified in such Sections shall no longer constitute an Event of Default
(clause (ii) being referred to as the "covenant defeasance option"), but except
as specified above, the remainder of this Indenture and the Securities shall be
unaffected thereby. Each of the Issuers may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If any of the Issuers exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default and the
Subsidiary Guarantees in effect at such time shall terminate. If any of the
Issuers exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Sections 6.1(3)
(only with respect to Section 4.1(3)), 6.1(4), 6.1(5), 6.1(6), 6.1(7) (with
respect only to Significant Subsidiaries), 6.1(8) or 6.1(9).
Upon satisfaction of the conditions set forth herein and upon request
of the Issuers, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuers terminate.
(c) Notwithstanding the provisions of Sections 8.1(a) and (b), the
Issuers' obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.9, 2.10, 2.11, 2.12,
3.1, 3.13, 3.17, 6.7, 7.7 and 7.8 and in this Article VIII shall survive until
the Securities have been paid in full. After the Securities have been paid in
full, only the Issuers' obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. Each of the Issuers may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) such Issuer irrevocably deposits in trust with the Trustee for
the benefit of the Holders money in U.S. dollars or U.S.
Government Obligations or a combination thereof, the principal of
and interest (without reinvestment) on which will be sufficient,
or a combination thereof sufficient, for the payment of principal
of, premium, if any, and interest on the Securities to maturity
or redemption, as the case may be;
(2) such Issuer 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 cash at such times and in such amounts as
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will be sufficient to pay principal and interest when due on all
the Securities to maturity or redemption, as the case may be;
(3) no Default or Event of Default shall have occurred and be
continuing as a result of such deposit or, with respect to
certain bankruptcy or insolvency Events of Default, on the later
of (i) the 91st day after such date of deposit or (ii) the day
ending on the day following the expiration of the longest
preference period under any bankruptcy law applicable to the
Issuer in respect of such deposit;
(4) such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under any other
agreement or instrument to which the Issuer or any of its
Subsidiaries is a party or by which the Issuer or any of its
Subsidiaries is bound;
(5) such Issuer shall have delivered to the Trustee an Opinion of
Counsel (subject to customary assumptions and exclusions) to the
effect that (A) the Securities and (B) assuming no intervening
bankruptcy of such Issuer between the date of deposit and the
91st day following the deposit and that no Holder of the
Securities is an insider of such Issuer, after the 91st day
following the deposit, the trust funds, will not be subject to
the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally;
(6) such Issuer delivers to the Trustee an Opinion of Counsel
(subject to customary assumptions and exclusions) 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;
(7) in the case of the legal defeasance option, such Issuer shall
have delivered to the Trustee an Opinion of Counsel (subject to
customary assumptions and exclusions) in the United States
stating that (i) such Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii)
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 deposit and
legal defeasance and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would
have been the case if such deposit and legal defeasance had not
occurred;
(8) in the case of the covenant defeasance option, such Issuer shall
have delivered to the Trustee an Opinion of Counsel (subject to
customary assumptions and exclusions) in the United States to the
effect that the Securityholders will not recognize income, gain
or loss for federal income tax purposes as a result of such
deposit and covenant defeasance and will
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be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred; and
(9) such Issuer delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
to either the legal defeasance or covenant defeasance, as the
case may be, as contemplated by this Article VIII have been
complied with.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in
trust all money or U.S. Government Obligations (including proceeds thereof)
deposited with it pursuant to this Article VIII. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture and the Securities to the Holders of the
Securities of all sums due in respect of the payment of principal of, premium,
if any, and accrued interest on the Securities.
SECTION 8.4. Repayment to the Issuers. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money,
U.S. Government Obligations or securities held by them upon payment of all the
obligations under this Indenture.
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 of or premium, if any, or interest on the Securities
that remains unclaimed by the Holders thereof for two years, and, thereafter,
Securityholders entitled to the money must look to the Company for payment as
unsecured general creditors.
SECTION 8.5. Indemnity for U.S. Government Obligations. Each of the
Issuers 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 8.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article VIII 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 obligations of the Issuers and each
Subsidiary Guarantor under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article VIII
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article VIII;
provided, however, that, if the Issuers or the Subsidiary Guarantors have made
any payment of principal, premium, if any, interest on or principal of any
Securities because of the reinstatement of its obligations, the Issuers or
Subsidiary Guarantors, as the case may be, 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.
The Trustee's rights under this Article VIII shall survive termination
of this Indenture.
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ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. Notwithstanding Section 9.02
of this Indenture, each of the Issuers, the Subsidiary Guarantors and the
Trustee may amend or supplement this Indenture or the Securities or the
Subsidiary Guarantees without consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a Successor Company of the
obligations of the Issuers or the assumption by a successor Person of the
obligations of any Issuer or Subsidiary Guarantor under this Indenture;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued 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 release a
Subsidiary Guarantor upon its designation as an Unrestricted Subsidiary;
provided, however, that the designation is in accord with the applicable
provisions of this Indenture;
(5) to secure the Securities;
(6) to add to the covenants of each of the Issuers and the Restricted
Subsidiaries for the benefit of the Holders or surrender any right or power
conferred upon the Issuers;
(7) to make any change that does not adversely affect the legal rights
of any Holder;
(8) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA;
(9) to provide for the issuance of the Exchange Securities which will
have terms substantially identical in all respects to the Initial
Securities or the Additional Securities, as the case may be (except that
the transfer restrictions contained in the Initial Securities or the
Additional Securities, if any, shall be modified or eliminated, as
appropriate), and which shall be treated, together with any outstanding
Initial Securities or Additional Securities, as a single class of
securities;
(10) to provide for the appointment of a successor trustee, provided
that the successor trustee be otherwise qualified and eligible to act as
such under the terms of this Indenture; or
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(11) upon receipt of an Officers' Certificate stating that a provision
in the "Description of notes" included in the offering memorandum related
to the Initial Securities is intended to be a verbatim recitation of a
provision of this Indenture, the Securities or the Subsidiary Guarantees,
to conform the text of this Indenture, the Securities or the Subsidiary
Guarantees to such provision of the "Description of notes".
After an amendment or supplement under this Section becomes effective,
the Issuers shall mail to Securityholders a notice briefly describing such
amendment or supplement. The failure to give such notice to all Securityholders,
or any defect therein, shall not impair or affect the validity of an amendment
or supplement under this Section.
SECTION 9.2. With Consent of Holders. Each of the Issuers, the
Subsidiary Guarantors and the Trustee may amend or supplement 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, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Securities). Any past
default or compliance with any provision of this Indenture or the Securities may
be waived with the written consent of the Holders of a majority in principal
amount of the Securities then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities). However, without the consent of each Holder affected, an
amendment, supplement or waiver may not (with respect to any Securities held by
a non-consenting Holder of Securities):
(1) reduce the principal amount of Securities outstanding whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the stated rate of or extend the stated time for payment of
interest or additional interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption or repurchase of
any Security or change the time at which any Security may or shall be
redeemed or repurchased as described under Section 3.7 or 3.9 or Article V
or any similar provision, whether through an amendment or waiver of Section
3.7 or 3.9 or Article V, definitions (with the exception of the defined
terms "Permitted Holder" and "Change of Control") or otherwise;
(5) make any Security payable in money other than that stated in the
Security;
(6) impair the right of any Holder to institute suit for the
enforcement of any payment on or with respect to such Holder's Securities;
(7) make any change to the amendment provisions which require each
Holder's consent or to the waiver provisions; or
(8) modify the Subsidiary Guarantees in any manner adverse to the
Holders.
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It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof. A consent to any amendment, supplement or waiver under this Indenture
by any Holder of the Securities given in connection with a tender or exchange of
such Holder's Securities will not be rendered invalid by such tender or
exchange.
After an amendment or supplement under this Section becomes effective,
the Issuers shall mail to Securityholders a notice briefly describing such
amendment or supplement. The failure to give such notice to all Securityholders,
or any defect therein, shall not impair or affect the validity of an amendment
or supplement under this Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment or
supplement to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent
to an amendment, supplement 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. 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, supplement or waiver becomes effective
or otherwise in accordance with any related solicitation documents. After an
amendment, supplement or waiver becomes effective, it shall bind every
Securityholder unless it makes a change described in any of clauses (1) through
(8) of Section 9.2, in which case the amendment, supplement, waiver or other
action shall bind each Securityholder who has consented to it and every
subsequent Securityholder that evidences the same debt as the consenting
Holder's Securities. An amendment, supplement or waiver shall become effective
upon receipt by the Trustee of the requisite number of written consents under
Section 9.1 or Section 9.2 as applicable.
The Issuers 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 become valid or effective more than 120
days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an amendment,
supplement or waiver 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 Issuers or the Trustee so determine, the
Issuers 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.
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SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article IX if the
amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If, in the reasonable judgment of the
Trustee, it does, the Trustee may but need not sign it. In signing such
amendment, supplement or waiver the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to be provided with, and (subject to
Sections 7.1 and 7.2) shall be fully protected in relying upon an Officers'
Certificate and an Opinion of Counsel stating that such amendment, supplement or
waiver is authorized or permitted by this Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Issuers
and any Subsidiary Guarantors, enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 9.3).
ARTICLE X
SECURITIES GUARANTEE
SECTION 10.1. Subsidiary Guarantee. Subject to the provisions of this
Article X, each Subsidiary Guarantor hereby fully, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, jointly and
severally with each other Subsidiary Guarantor, to each Holder of the Securities
and the Trustee, the full and punctual payment when due, whether at maturity, by
acceleration, by redemption or otherwise, of the principal of, premium, if any,
and interest on the Securities and, if lawful, all other obligations and
liabilities of the Issuers to the Holders or the Trustee hereunder under this
Indenture (including without limitation interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Issuers or any Subsidiary
Guarantor whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding and the obligations under Section 7.7) (all the
foregoing being hereinafter collectively called the "Guarantor Obligations").
Each Subsidiary Guarantor agrees that the Guarantor Obligations will rank
equally in right of payment with other Indebtedness of such Subsidiary
Guarantor, except to the extent such other Indebtedness is subordinate to the
Guarantor Obligations. Each Subsidiary Guarantor further agrees (to the extent
permitted by law) that the Guarantor Obligations may be extended or renewed, in
whole or in part, without notice or further assent from it, and that it will
remain bound under this Article X notwithstanding any extension or renewal of
any Guarantor Obligation.
Each Subsidiary Guarantor waives presentation to, demand of payment
from and protest to the Issuers of any of the Guarantor Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the Securities or the Guarantor Obligations.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a Guarantee of payment when due (and not a Guarantee of
collection) and waives any right to require that any resort be had by any Holder
to any security held for payment of the Guarantor Obligations.
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Except as set forth in Section 10.2, the obligations of each
Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the
Guarantor Obligations in full), including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guarantor Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Subsidiary Guarantor herein shall not be discharged or impaired or
otherwise affected by (a) the failure of any Holder to assert any claim or
demand or to enforce any right or remedy against the Issuers or any other person
under this Indenture, the Securities or any other agreement or otherwise; (b)
any extension or renewal of any thereof; (c) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Indenture, the
Securities or any other agreement; (d) the release of any security held by any
Holder or the Trustee for the Guarantor Obligations or any of them; (e) the
failure of any Holder to exercise any right or remedy against any other
Subsidiary Guarantor; (f) any change in the ownership of the Issuers; (g) any
default, failure or delay, willful or otherwise, in the performance of the
Guarantor Obligations; or (h) any other act or thing or omission or delay to do
any other act or thing which may or might in any manner or to any extent vary
the risk of any Subsidiary Guarantor or would otherwise operate as a discharge
of such Subsidiary Guarantor as a matter of law or equity.
Subject to the provisions of Section 3.11, each Subsidiary Guarantor
agrees that its Subsidiary Guarantee herein shall remain in full force and
effect until payment in full of all the Guarantor Obligations or such Subsidiary
Guarantor is released from its Subsidiary Guarantee upon the merger or the sale
of all the Capital Stock or assets of the Subsidiary Guarantor in compliance
with Section 10.2. Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
on any of the Guarantor Obligations is rescinded or must otherwise be restored
by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder has at law or in equity against any Subsidiary Guarantor
by virtue hereof, upon the failure of the Issuers to pay any of the Guarantor
Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of
(i) the unpaid amount of such Guarantor Obligations then due and owing and (ii)
accrued and unpaid interest on such Guarantor Obligations then due and owing
(but only to the extent not prohibited by law).
Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (x)
the maturity of the Guarantor Obligations guaranteed hereby may be accelerated
as provided in this Indenture for the purposes of its Subsidiary Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guarantor Obligations guaranteed hereby and
(y) in the event of any such declaration of acceleration of such Guarantor
Obligations, such Guarantor Obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Guarantor for the purposes of
this Subsidiary Guarantee.
104
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or the Holders in enforcing any rights under this Section.
SECTION 10.2. Limitation on Liability; Termination, Release and
Discharge.
(a) Any term or provision of this Indenture to the contrary
notwithstanding, the obligations of each Subsidiary Guarantor hereunder will be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor (including,
without limitation, any guarantees under the senior credit facility) and after
giving effect to any collections from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its
contribution obligations under this Indenture, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law and not
otherwise being void or voidable under any similar laws affecting the rights of
creditors generally.
(b) In addition, the Company shall not permit any Subsidiary Guarantor
to consolidate with or merge with or into any person (other than another
Subsidiary Guarantor) and shall not permit the conveyance, transfer or lease of
substantially all of the assets of any Subsidiary Guarantor unless:
(1) (x) the resulting, surviving or transferee Person shall be a
corporation, partnership, trust or limited liability company
organized and existing under the laws of the United States of
America, any State of the United States or the District of
Columbia and such Person (if not such Subsidiary Guarantor) shall
expressly assume, by supplemental indenture, executed and
delivered to the Trustee, all the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee; (y) immediately after
giving effect to such transaction (and treating any Indebtedness
that becomes an obligation of the resulting, surviving or
transferee Person or any Restricted Subsidiary as a result of
such transaction as having been Incurred by such Person or such
Restricted Subsidiary at the time of such transaction), no
Default or Event of Default shall have occurred and be
continuing; and (z) the Issuers 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; or
(2) the transaction is made in compliance with Sections 3.7, 3.9 and
4.1.
Upon the sale or disposition of a Subsidiary Guarantor (by merger,
consolidation, the sale of its Capital Stock or the sale of all or substantially
all of its assets (other than by lease)) and whether or not the Subsidiary
Guarantor is the surviving corporation in such transaction to a Person which is
not the Issuers or a Restricted Subsidiary, such Subsidiary Guarantor will be
automatically released from all its obligations under this Indenture and its
Subsidiary Guarantee and the Registration Rights Agreement and such Subsidiary
Guarantee will terminate; provided,
105
however, that (x) the sale or other disposition is in compliance with this
Indenture, including Sections 3.7, 3.9 and 4.1 and (y) all the obligations of
such Subsidiary Guarantor under all Credit Facilities and related documentation
and any other obligations of such Subsidiary Guarantor relating to any other
Indebtedness of the Issuers or its Restricted Subsidiaries terminate upon
consummation of such transaction.
(c) Each Subsidiary Guarantor shall be deemed released from all its
obligations under this Indenture and the Registration Rights Agreement and such
Subsidiary Guarantee shall terminate upon the legal defeasance of the Securities
pursuant to the provisions of Article VIII hereof.
(d) Each Subsidiary Guarantor shall be released from its obligations
under this Indenture, its Subsidiary Guarantee and the Registration Rights
Agreement if the Issuers designate such Subsidiary Guarantor as an Unrestricted
Subsidiary and such designation complies with the other applicable provisions of
this Indenture.
SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor hereby
agrees that to the extent that any Subsidiary Guarantor shall have paid more
than its proportionate share of any payment made on the obligations under the
Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek and
receive contribution from and against the Issuers, or any other Subsidiary
Guarantor who has not paid its proportionate share of such payment. The
provisions of this Section 10.3 shall in no respect limit the obligations and
liabilities of each Subsidiary Guarantor to the Trustee and the Holders and each
Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the
full amount guaranteed by such Subsidiary Guarantor hereunder.
SECTION 10.4. No Subrogation. Notwithstanding any payment or payments
made by each Subsidiary Guarantor hereunder, no Subsidiary Guarantor shall be
entitled to be subrogated to any of the rights of the Trustee or any Holder
against the Issuers or any other Subsidiary Guarantor or any collateral security
or guarantee or right of offset held by the Trustee or any Holder for the
payment of the Guarantor Obligations, nor shall any Subsidiary Guarantor seek or
be entitled to seek any contribution or reimbursement from the Issuers or any
other Subsidiary Guarantor in respect of payments made by such Subsidiary
Guarantor hereunder, until all amounts owing to the Trustee and the Holders by
the Issuers on account of the Guarantor Obligations are paid in full. If any
amount shall be paid to any Subsidiary Guarantor on account of such subrogation
rights at any time when all of the Guarantor Obligations shall not have been
paid in full, such amount shall be held by such Subsidiary Guarantor in trust
for the Trustee and the Holders, segregated from other funds of such Subsidiary
Guarantor, and shall, forthwith upon receipt by such Subsidiary Guarantor, be
turned over to the Trustee in the exact form received by such Subsidiary
Guarantor (duly indorsed by such Subsidiary Guarantor to the Trustee, if
required), to be applied against the Guarantor Obligations.
106
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls. If and to the extent that
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
provision required by the TIA shall control. Each Subsidiary Guarantor in
addition to performing its obligations under its Subsidiary Guarantee shall
perform such other obligations as may be imposed upon it with respect to this
Indenture under the TIA.
SECTION 11.2. Notices. Any notice or communication shall be in writing
and delivered in person, sent by facsimile, delivered by commercial courier
service or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuers:
Xxxxxxx & Xxxxxxxxx LLC
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
with copies to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, XX, Esq.
J. Xxxx Xxxx, Esq.
if to the Trustee:
Xxxxx Fargo Bank, National Association
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration
The Issuers or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to the Issuers or the Subsidiary
Guarantors shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five calendar days
107
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a registered 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, except that
notices to the Trustee shall be effective only upon receipt.
SECTION 11.3. 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. Each of the Issuers, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent.
Other than in connection with the issuance of the Initial Securities, upon any
request or application by the Issuers to the Trustee to take or refrain from
taking any action under this Indenture, the Issuers 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, if any, provided for in this Indenture
relating to the proposed action have been complied with.
SECTION 11.5. 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
108
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officers' Certificate or on certificates of public officials.
SECTION 11.6. When Securities Disregarded. In determining whether the
Holders of the required aggregate principal amount of Securities have concurred
in any direction, waiver or consent, Securities owned by the Issuers, any
Subsidiary Guarantor or any Affiliate of them 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 actually 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 11.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by, or at meetings of,
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 11.8. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York, New York. 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 11.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE SUBSIDIARY GUARANTEES.
SECTION 11.10. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder, as such, of the Issuers or any Subsidiary
Guarantor shall have any liability for any obligations of the Issuers or such
Subsidiary Guarantor under the Securities, this Indenture or a Subsidiary
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Securities by accepting a Security
waives and releases all such liability to the extent permitted by applicable
law. The waiver and release are part of the consideration for issuance of the
Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the SEC that such a waiver is
against public policy.
SECTION 11.11. Successors. All agreements of the Issuers and each
Subsidiary Guarantor in this Indenture and the Securities shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
109
SECTION 11.12. 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 11.13. Qualification of Indenture. The Issuers shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees and expenses for the Issuers, the Trustee and the
Holders) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Securities and printing
this Indenture and the Securities. The Trustee shall be entitled to receive from
the Issuers any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 11.14. 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.
110
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
XXXXXXX & XXXXXXXXX LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board of Director
XXXXXXX & XXXXXXXXX CORP.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board of Director
XXXXXXX & XXXXXXXXX DISTRIBUTOR
HOLDINGS LLC
XXXXXXX & XXXXXXXXX POWER PRODUCTS LLC
XXXXXXX & XXXXXXXXX PETROLEUM
SERVICES LLC
S&S AGENT LLC
By: XXXXXXX & XXXXXXXXX LLC, as the
sole member of each of
the Guarantors
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board of Director
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF FACE OF NOTE]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No. [___] Principal Amount $[___________], as
revised by the Schedule of Increases and
Decreases in Global Security attached hereto
CUSIP NO. __________________________________
ISIN: ______________________________________
XXXXXXX & XXXXXXXXX LLC
XXXXXXX & XXXXXXXXX CORP.
10% Senior Notes due 2014
Xxxxxxx & Xxxxxxxxx LLC, a Delaware limited liability corporation, and
Xxxxxxx & Xxxxxxxxx Corp., a Delaware corporation, promise to pay to Cede & Co.,
or its registered assigns, the principal sum of _____________, as revised by the
Schedule of Increases and Decreases in Global Security attached hereto, on July
15, 2014.
Interest Payment Dates: January 15 and July 15, commencing on January
15, 2007
Record Dates: January 1 and July 1
A-1
Additional provisions of this Security are set forth on the other side
of this Security.
XXXXXXX & XXXXXXXXX LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX & XXXXXXXXX CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
---------------------------------
Authorized Signatory Date: , 20
-------- -- --
A-2
[FORM OF REVERSE SIDE OF NOTE]
XXXXXXX & XXXXXXXXX LLC
XXXXXXX & XXXXXXXXX CORP.
10% Senior Notes due 2014
This Security is one of a duly authorized issue of Securities of the Issuers,
issued under an Indenture dated as of July 6, 2006, among the Issuers, the
Subsidiary Guarantors named therein and Xxxxx Fargo Bank, National Association,
as Trustee (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), to which Indenture reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuers, the Subsidiary Guarantors, the Trustee and
the Holders and the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security that are defined in the Indenture shall have the
meaning assigned to them in the Indenture.
1. Interest
Xxxxxxx & Xxxxxxxxx LLC (the "Company"), a Delaware limited liability
corporation and Xxxxxxx & Xxxxxxxxx Corp., a Delaware corporation (such
companies, and their successors and assigns under the Indenture hereinafter
referred to, being herein called the "Issuers"), promise to pay interest on the
principal amount of this Security at the rate per annum shown above.
The Company will pay interest semi-annually on January 15 and July 15,
commencing on January 15, 2007. Interest on the Securities will accrue from the
most recent date to which interest has been paid on the Securities or, if no
interest has been paid, from July 6, 2006. The Company shall pay interest on
overdue principal and on overdue premium, if any (plus interest on such interest
to the extent lawful), at the rate borne by the Securities to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
[If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated or a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Securities is not declared effective by the SEC on or before the date that is
270 days after the Issue Date (the "Target Registration Date") in accordance
with the terms of the Registration Rights Agreement dated July 6, 2006 among the
Issuers, the Subsidiary Guarantors and the Initial Purchaser, the annual
interest rate borne by the Securities shall be increased from the rate shown
above by (i) 0.25% per annum for the first 90-day period immediately following
the Target Registration Date and (ii) an additional 0.25% per annum with respect
to each subsequent 90-day period, in each case until the Exchange Offer is
completed or the Shelf Registration Statement, if required, is declared
effective by the SEC or the Securities become freely tradable under the
Securities Act, up to a maximum of 1.00% per
A-3
annum of additional interest. If the Issuers receive a request (a "Shelf
Request") from an Initial Purchaser representing that it holds Securities that
are or were ineligible to be exchanged in the Exchange Offer and requesting that
a Shelf Registration Statement be filed due to an unsold allotment of Securities
held by such Initial Purchaser, and the Shelf Registration Statement is not
declared effective by the SEC by the later of (x) 150 days after the Issue Date
and (y) 90 days after the delivery of such Shelf Request (the "Shelf Additional
Interest Date"), the annual interest rate borne by such Securities held by the
Initial Purchaser shall be increased from the rate shown above by (i) 0.25% per
annum for the first 90-day period immediately following the Shelf Additional
Interest Date and (ii) an additional 0.25% per annum with respect to each
subsequent 90-day period, in each case until the Shelf Registration Statement is
declared effective or the Securities become freely tradable under the Securities
Act, up to a maximum of 1.00% per annum of additional interest. The Holder of
this Security is entitled to the benefits of such Registration Rights
Agreement.]
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which
any principal of, premium, if any, or interest on any Security is due and
payable, the Company shall deposit with the Paying Agent a sum sufficient in
immediately available funds to pay such principal, premium, if any, or interest.
The Issuers will pay interest (except Defaulted Interest) to the Persons who are
registered Holders of Securities at the close of business on the January 1 or
July 1 next preceding the interest payment date even if Securities are
cancelled, repurchased or redeemed after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal, premium, if any, 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
Securities represented by a Global Security (including principal, premium, if
any, and interest) will be made by the transfer of immediately available funds
to the accounts specified by The Depository Trust Company or any successor
depository. The Company will make all payments in respect of a Definitive
Security (including principal, premium, if any, and interest) by mailing a check
to the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, 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 15
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, Xxxxx Fargo Bank, National Association (the "Trustee") will
act as Trustee, Paying Agent and Registrar. The Issuers may appoint and change
any Paying Agent, Registrar or co-registrar without notice to any
Securityholder. Any of the domestically organized Wholly-Owned Subsidiaries may
act as Paying Agent, Registrar or co-registrar.
A-4
4. Indenture
The Issuers issued the Securities under the Indenture. 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"). The
Securities are subject to all terms and provisions of the Indenture, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
[The Securities are general unsecured, senior obligations of the
Issuers. The aggregate principal amount of Securities that may be authenticated
and delivered under the Indenture is unlimited. This Security is one of the 10%
Senior Notes due 2014 referred to in the Indenture. The Securities include (i)
$150,000,000 aggregate principal amount of the Issuers' 10% Senior Notes due
2014 issued under the Indenture on July 6, 2006 (herein called "Initial
Securities"), (ii) if and when issued, additional 10% Senior Notes due 2014 of
the Issuers that may be issued from time to time under the Indenture subsequent
to July 6, 2006 (herein called "Additional Securities") and (iii) if and when
issued, the Issuers' 10% Senior Notes due 2014 that may be issued from time to
time under the Indenture in exchange for Initial Securities or Additional
Securities in an offer registered under the Securities Act as provided in the
Registration Rights Agreement (herein called "Exchange Securities"). The Initial
Securities, Additional Securities and Exchange Securities are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the incurrence of indebtedness, the making of restricted
payments, the sale of assets and subsidiary stock, the incurrence of certain
liens, sale/leaseback transactions, affiliate transactions, the making of
payments for consents, the entering into of agreements that restrict
distributions from restricted subsidiaries and the consummation of mergers and
consolidations. The Indenture also imposes requirements with respect to the
provision of financial information and the provision of guarantees of the
Securities by certain subsidiaries.]
To guarantee the due and punctual payment of the principal, premium,
if any, and interest (including post-filing or post-petition interest) on the
Securities and all other amounts payable by the Issuers under the Indenture and
the Securities when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Securities
and the Indenture, the Subsidiary Guarantors have fully, unconditionally and
irrevocably Guaranteed (and future guarantors, together with the Subsidiary
Guarantors, will fully, unconditionally and irrevocably Guarantee), jointly and
severally, to each Holder of the Securities and the Trustee the Guarantor
Obligations pursuant to Article X of the Indenture on a senior basis.
5. Redemption
Except as set forth below, the Securities will not be redeemable at
the option of the Issuers prior to July 15, 2010. On and after such date, the
Securities will be redeemable, at the Issuers' option, in whole or in part, at
any time upon not less than 30 nor more than 60 days' prior notice mailed to
each Holder's registered address, at the following redemption prices (expressed
in percentages of principal amount), plus accrued and unpaid interest, if any,
to the applicable Redemption Date (subject to the right of Holders of record on
the relevant record date
A-5
to receive interest due on the relevant interest payment date), if redeemed
during the 12-month period commencing on July 15 of the years set forth below:
PERIOD PERCENTAGE
------ ----------
2010 105.000%
2011 102.500%
2012 and thereafter 100.000%
In addition, at any time and from time to time prior to July 15, 2009,
the Issuers may on any one or more occasions redeem in the aggregate up to 35%
of the original principal amount of the Securities (after giving effect to any
future issuance of Additional Securities) with the Net Cash Proceeds of one or
more Equity Offerings at a redemption price (expressed as a percentage of
principal amount) of 110%, plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the original principal amount of the
Securities (after giving effect to any future issuance of Additional Securities)
must remain outstanding after each such redemption; provided further, that each
such redemption occurs within 90 days of the date of closing of such Equity
Offering.
Notwithstanding the preceding paragraphs, the Securities will be
redeemable, at the Issuers' option, at any time prior to July 15, 2010, in whole
or from time to time in part, at a price equal to the greater of:
(1) 100% of the principal amount of the Securities to be redeemed
plus accrued but unpaid interest to the date of redemption; and
(2) (a) the sum of the present values of the remaining scheduled
payments of principal and interest thereon from the date of
redemption to July 15, 2010 (except for currently accrued but
unpaid interest) (assuming the Securities are redeemed, and based
on the applicable redemption price, on that date) discounted to
the date of redemption, on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months), at the Treasury Rate,
plus 50 basis points, plus (b) accrued but unpaid interest to the
date of redemption.
The actual redemption price, calculated as provided in this Section,
will be calculated and certified to the Trustee and the Issuers by the
Independent Investment Banker. For purposes of determining the optional
redemption price pursuant to this Section, the following definitions are
applicable:
"Comparable Treasury Issue" means the United States Treasury security
or securities selected by the Independent Investment Banker as having an
actual or interpolated maturity comparable to the remaining term of the
Securities to July 15, 2010 that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of a comparable maturity.
A-6
"Comparable Treasury Price" means, for any Redemption Date, (1) the
average of four Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (2) if the Independent Investment Banker obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Independent Investment Banker" means X.X. Xxxxxx Securities Inc. and
any successor firm, or if such firm is unwilling or unable to select the
Comparable Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee after consultation with the
Issuers.
"Reference Treasury Dealer" means X.X. Xxxxxx Securities Inc. and its
successors, plus three other dealers selected by the Independent Investment
Banker that are primary U.S. government securities dealers in New York
City; provided, if X.X. Xxxxxx Securities Inc. or any primary U.S.
government securities dealer selected by the Independent Investment Banker
shall cease to be a primary U.S. government securities dealer, then such
other primary U.S. government securities dealers as may be substituted by
the Independent Investment Banker.
"Reference Treasury Dealer Quotations" means, for each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) at 3:30
p.m., New York City time, on the third business day preceding such
Redemption Date, as quoted in writing to the Trustee by such Reference
Treasury Dealer.
"Treasury Rate" means, with respect to any Redemption Date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System
and which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Comparable
Treasury Issue (if no maturity is within three months before or after the
remaining term of the Securities, yields for the two published maturities
most closely corresponding to the Comparable Treasury Issue shall be
determined and the Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month) or (2)
if such release (or any successor release) is not published during the week
in which the calculation date falls (or in the immediately preceding week
if the calculation date falls on any day prior to the usual publication
date for such release) or does not contain such yields, the rate per year
equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third business day preceding the Redemption Date. Any
weekly average yields calculated by interpolation or extrapolation will be
rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1% or
above being rounded upward.
A-7
If the optional Redemption Date is on or after an interest record date
and on or before the related interest payment date, the accrued and unpaid
interest, if any, will be paid to the Person in whose name the Security is
registered at the close of business on such record date, and no additional
interest will be payable to Holders whose Securities will be subject to
redemption by the Issuers.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed, then on a pro rata basis, by lot or
by such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Securities of $1,000 in original principal amount
or less will be redeemed in part. If any Security is to be redeemed in part
only, the notice of redemption relating to such Security shall state the portion
of the principal amount thereof to be redeemed. A new Security in principal
amount equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Security. On and after the
Redemption Date, interest will cease to accrue on Securities or portions thereof
called for redemption as long as the Issuers have deposited with the Paying
Agent funds in satisfaction of the applicable redemption price pursuant to the
Indenture.
6. Repurchase Provisions
If a Change of Control occurs, unless any of the Issuers has exercised
its right to redeem all of the Securities as described under paragraph 5 of this
Security, then such Change of Control shall constitute a triggering event which
shall trigger the obligation of the Issuers to offer to repurchase from each
Holder all or any part (equal to $1,000 or an integral multiple of $1,000 in
excess thereof) of such Holder's Securities at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date) as provided in, and subject to the terms of, the Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of principal amount of $2,000 and whole multiples of $1,000 in excess thereof. 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 a sum sufficient to cover any
taxes and fees required by law or permitted by the Indenture. The Issuers and
the Registrar need not register the transfer of or exchange (i) 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) for a period beginning 15
days before the mailing of a notice of Securities to be redeemed and ending at
the close of business on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
A-8
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes.
9. 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 for payment as general creditors unless an abandoned property law
designates another person and not to the Trustee for payment.
10. Defeasance
Subject to certain exceptions and conditions set forth in the
Indenture, the Issuers at any time may terminate some or all of its obligations
under the Securities and the Indenture if the Issuers deposits with the Trustee
money or U.S. Government Obligations for the payment of principal, premium, if
any, and interest on the Securities to redemption or maturity, as the case may
be.
11. Amendment, Supplement, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities may be amended or supplemented by the Issuers, the
Subsidiary Guarantors and the Trustee with the written consent of the Holders of
at least a majority in principal amount of the then outstanding Securities and
(ii) any default (other than with respect to nonpayment or in respect of a
provision that cannot be amended without the written consent of each
Securityholder affected) or noncompliance with any provision may be waived with
the written consent of the Holders of a majority in principal amount of the then
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, each of the Issuers, the
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, omission, defect or inconsistency, to
provide for uncertificated Securities in addition to or in place of certificated
Securities, to comply with Article IV of the Indenture or Section 10.2 in
respect of the assumption by a Successor Company of an obligation of each of the
Issuers or the assumption by a successor Person of the obligations of any
Subsidiary Guarantor under this Indenture, to add Guarantees with respect to the
Securities or release a Subsidiary Guarantor in accordance with the Indenture,
to secure the Securities, to make any change that would provide any additional
rights or benefits to the Holders of the Securities or surrender any right or
power conferred upon each of the Issuers or that does not adversely affect the
rights under the Indenture of any such Holder, to comply with any requirement of
the SEC in order to effect or maintain the qualification of this Indenture under
the TIA, to provide for the issuance of the Exchange Securities, to provide for
the appointment of a successor Trustee or to conform the Indenture, the
Securities or the Subsidiary Guarantees to certain provisions of the
"Description of notes," as contained in the final offering memorandum related to
the Initial Securities, in each case as more fully described in the Indenture.
A-9
12. Defaults and Remedies
Under the Indenture, Events of Default include (each of which are more
specially described in the Indenture) (i) default in any payment of interest or
additional interest (as required by the Registration Rights Agreement) on any
Security when due, continued for 30 days; (ii) default in the payment of
principal of or premium, if any, on any Security when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise; (iii) failure by the Company to comply with its obligations under
Section 4.1 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Section 3.9 of the Indenture or under certain covenants described in Article III
of the Indenture (in each case, other than a failure to purchase Securities
which constitutes an Event of Default under clause (ii) above); (v) failure by
the Company to comply for 60 days after notice with its other agreements
contained in the Indenture; (vi) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries), other than Indebtedness owed to the Company
or a Restricted Subsidiary, whether such Indebtedness or guarantee now exists,
or is created after the Issue Date, which default (a) is caused by a failure to
pay principal of, or interest or premium, if any, on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness ("payment
default"); or (b) results in the acceleration of such Indebtedness prior to its
maturity; and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there has been a payment default or the maturity of which has been so
accelerated, aggregates $10 million or more; (vii) certain events of bankruptcy,
insolvency or reorganization of the Company or a Significant Subsidiary or group
of Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary; (viii) failure by the
Company or any Significant Subsidiary or group of Restricted Subsidiaries that,
taken together (as of the latest audited consolidated financial statements for
the Company and its Restricted Subsidiaries), would constitute a Significant
Subsidiary to pay final judgments aggregating in excess of $10 million (net of
any amounts that a reputable and creditworthy insurance company has acknowledged
liability for in writing), which judgments are not paid, discharged or stayed
for a period of 60 days; or (ix) any Subsidiary Guarantee of a Significant
Subsidiary ceases to be in full force and effect (except as contemplated by the
terms of the Indenture) or is declared null and void in a judicial proceeding or
any Subsidiary Guarantor denies or disaffirms its obligations under the
Indenture or its Subsidiary Guarantee.
If an Event of Default (other than an Event of Default described in
(vii) of this Section, above, occurs and is continuing, the Trustee by notice to
the Issuers or the Holders of at least 25% in principal amount of the
outstanding Securities may declare all the Securities to be due and payable
immediately. If an Event of Default described in (vii) hereof occurs and is
continuing, the principal of, premium, if any, and accrued and unpaid interest
on all the Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
A-10
Holders 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 reasonable indemnity or security. 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 Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
13. Trustee Dealings with the Issuers
Subject to certain limitations set forth in the Indenture, 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 the Issuers,
Subsidiary Guarantors or their Affiliates and may otherwise deal with each of
the Issuers or its Affiliates with the same rights it would have if it were not
Trustee.
14. No Recourse Against Others
No director, officer, employee, incorporator or stockholder, as such,
of the Issuers or any Subsidiary Guarantor shall have any liability for any
obligations of each of the Issuers or such Subsidiary Guarantor under the
Securities, including this Security, the Indenture or a Subsidiary Guarantee or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of this Security by accepting this Security waives
and releases all such liability to the extent permitted by applicable law. The
waiver and release are part of the consideration for issuance of this Security.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
15. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an Authenticating Agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
16. 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
entirety), 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).
17. CUSIP, Common Code and ISIN Numbers
The Issuers have caused CUSIP, Common Code or ISIN numbers, if
applicable, to be printed on the Securities, including this Security, and have
directed the Trustee to use CUSIP, Common Code or ISIN numbers, if applicable,
in notices of redemption as a convenience to Securityholders. No representation
is made as to the accuracy of such numbers
A-11
either as printed on the Securities, including this Security, or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Issuers will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture. Requests may
be made to:
Xxxxxxx & Xxxxxxxxx LLC
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx
A-12
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 social security or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on the
books of the Issuers. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
------------------------------- ------------------------
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
[In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is two years
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 Issuers, or any
Affiliate of the Issuers, the undersigned confirms that such Securities are
being:
CHECK ONE BOX BELOW:
1[ ] acquired for the undersigned's own account, without transfer; or
2[ ] transferred to the Issuers; or
3[ ] transferred pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"); or
4[ ] transferred pursuant to an effective registration statement under the
Securities Act; or
5[ ] transferred pursuant to and in compliance with Regulation S under the
Securities Act; or
A-13
6[ ] transferred to an institutional "accredited investor" (within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act),
that has furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter appears as
Section 2.7 of the Indenture); or
7[ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933, as amended.
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 (5), (6) or
(7) is checked, the Trustee or the Issuers may require, prior to registering any
such transfer of the Securities, in its sole discretion, such legal opinions,
certifications and other information as the Trustee or the Issuers may
reasonably request 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, as amended, such as the exemption
provided by Rule 144 under such Act.
----------------------------------------
Signature
Signature Guarantee:
Date:
------------------------------- ----------------------------------------
Signature of Signature Guarantee
________________________________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (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, as amended, 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
Issuers 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: ]
A-14
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL SECURITY
The following increases and decreases in this Global Security have been
made:
Principal Amount of Signature of
Date of Amount of decrease in Amount of increase in this Global Security authorized signatory
Decrease or Principal Amount of Principal Amount of following such of Trustee or
Increase this Global Security this Global Security decrease or increase Securities Custodian
----------- --------------------- --------------------- -------------------- --------------------
A-15
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Security purchased by the Issuers Pursuant
to Section 3.7 or 3.9 of the Indenture, check either box:
[ ] [ ]
3.7 3.9
If you want to elect to have only part of this Security purchased by
the Issuers pursuant to Section 3.7 or Section 3.9 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $____________
Date: Your Signature:
---------- -----------------------------------------------
(Sign exactly as your name appears on the other
side of the Security)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
A-16
EXHIBIT B
FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS
This Supplemental Indenture, dated as of [_______ __], 20__ (this
"Supplemental Indenture" or "Guarantee"), among [name of future Subsidiary
Guarantor] (the "Guarantor"), Xxxxxxx & Xxxxxxxxx LLC, a Delaware limited
liability corporation and Xxxxxxx & Xxxxxxxxx Corp., a Delaware corporation
(such companies, and their successors and assigns under the Indenture
hereinafter referred to, being herein called the "Issuers"), each other then
existing Subsidiary Guarantor under the Indenture referred to below, and Xxxxx
Fargo Bank, National Association, as Trustee under the Indenture referred to
below.
WITNESSETH:
WHEREAS, the Issuers, the Subsidiary Guarantors and the Trustee have
heretofore executed and delivered an Indenture, dated as of July 6, 2006 (as
amended, supplemented, waived or otherwise modified, the "Indenture"), providing
for the issuance of 10% Senior Notes due 2014 of the Issuers (the "Securities");
WHEREAS, Section 3.11 of the Indenture provides that the Issuers are
required to cause each Restricted Subsidiary that Guarantees any Indebtedness of
the Issuers or any of its Subsidiary Guarantors to execute and deliver to the
Trustee a supplemental indenture pursuant to which such Restricted Subsidiary
will unconditionally Guarantee, on a joint and several basis with the other
Subsidiary Guarantors, the full and prompt payment of the principal of, premium,
if any, and interest on the Securities on a senior basis; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee, the
Issuers and the Subsidiary Guarantors are authorized to execute and deliver this
Supplemental Indenture to amend or supplement the Indenture, without the consent
of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Issuers, the other Subsidiary Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Guarantee
shall refer to the term "Holders" as defined in the Indenture and the Trustee
acting on behalf or for the benefit of such Holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental
B-1
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. The Guarantor hereby becomes a
party to the Indenture as a Subsidiary Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Subsidiary Guarantor and
to perform all of the obligations and agreements of a Subsidiary Guarantor under
the Indenture.
SECTION 2.2 Guarantee. The Guarantor agrees, on a joint and several
basis with all the existing Subsidiary Guarantors, to fully, unconditionally and
irrevocably Guarantee to each Holder of the Securities and the Trustee the
Guarantor Obligations pursuant to Article X of the Indenture on a senior basis.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to the
Guarantor shall be given as provided in the Indenture to the Guarantor, at its
address set forth below, with a copy to the Issuers as provided in the Indenture
for notices to the Issuers.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended
or shall be construed to give any Person, firm or corporation, other than the
Holders and the Trustee, any legal or equitable right, remedy or claim under or
in respect of this Supplemental Indenture or the Indenture or any provision
herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 3.4 Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
B-2
SECTION 3.6 Headings. The headings of the Articles and the Sections in
this Guarantee are for convenience of reference only and shall not be deemed to
alter or affect the meaning or interpretation of any provisions hereof.
B-3
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
[New Guarantor]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-4
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-5
