EXHIBIT 4.2
EXECUTION VERSION
INVACARE CORPORATION
AND EACH OF THE GUARANTORS PARTY HEREIN
9 3/4% SENIOR NOTES DUE 2015
----------
INDENTURE
Dated as of February 12, 2007
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Wells Fargo Bank, N.A.
Trustee
CROSS-REFERENCE TABLE*
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- --------------- --------------
310(a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.10
(c)......................................................... N.A.
311(a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312(a)......................................................... 2.06
(b)......................................................... 12.03
(c)......................................................... 12.03
313(a)......................................................... 7.06(a)
(b)(1)...................................................... N.A.
(b)(2)...................................................... 7.06(a)
(c)......................................................... 7.06(a), 12.02
(d)......................................................... 7.06(b)
314(a)......................................................... N.A
(a)(4)...................................................... 12.05(a)
(b)......................................................... N.A.
(c)(1)...................................................... 12.04
(c)(2)...................................................... 12.04
(c)(3)...................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... 12.05(a)
(f)......................................................... N.A.
315(a)......................................................... N.A.
(b)......................................................... N.A.
(c)......................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... N.A.
316(a)(last sentence).......................................... N.A.
(a)(1)(A)................................................... N.A.
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... N.A.
(c)......................................................... 12.14(d)
317(a)(1)...................................................... N.A.
(a)(2)...................................................... N.A.
(b)......................................................... N.A.
318(a)......................................................... N.A.
(b)......................................................... N.A.
(c)......................................................... 12.10
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
CROSS-REFERENCE TABLE...................................................... i
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE................................. 1
Section 1.01. Definitions................................................. 1
Section 1.02. Other Definitions........................................... 26
Section 1.03. Incorporation by Reference of Trust Indenture Act........... 27
Section 1.04. Rules of Construction....................................... 27
ARTICLE TWO
THE NOTES.................................................................. 27
Section 2.01. Form and Dating............................................. 27
Section 2.02. Execution and Authentication................................ 29
Section 2.03. Methods of Receiving Payments on the Notes.................. 29
Section 2.04. Registrar and Paying Agent.................................. 30
Section 2.05. Paying Agent to Hold Money in Trust......................... 30
Section 2.06. Holder Lists................................................ 30
Section 2.07. Transfer and Exchange....................................... 30
Section 2.08. Replacement Notes........................................... 43
Section 2.09. Outstanding Notes........................................... 43
Section 2.10. Treasury Notes.............................................. 44
Section 2.11. Temporary Notes............................................. 44
Section 2.12. Cancellation................................................ 44
Section 2.13. Defaulted Interest.......................................... 44
Section 2.14. CUSIP Numbers............................................... 45
Section 2.15. Additional Interest......................................... 45
Section 2.16. Issuance of Additional Notes................................ 45
ARTICLE THREE
REDEMPTION AND PREPAYMENT.................................................. 46
Section 3.01. Notices to Trustee.......................................... 46
Section 3.02. Selection of Notes to Be Redeemed........................... 46
Section 3.03. Notice of Redemption........................................ 46
Section 3.04. Effect of Notice of Redemption.............................. 47
Section 3.05. Deposit of Redemption Price................................. 47
Section 3.06. Notes Redeemed in Part...................................... 47
Section 3.07. Optional Redemption......................................... 48
Section 3.08. Mandatory Redemption........................................ 48
Section 3.09. Application of Trust Money.................................. 48
ARTICLE FOUR
COVENANTS.................................................................. 49
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Section 4.01. Payment of Notes............................................ 49
Section 4.02. Maintenance of Office or Agency............................. 49
Section 4.03. Reports..................................................... 49
Section 4.04. Compliance Certificate...................................... 50
Section 4.05. Taxes....................................................... 51
Section 4.06. Stay, Extension and Usury Laws.............................. 51
Section 4.07. Incurrence of Indebtedness and Issuance of Disqualified
Stock....................................................... 51
Section 4.08. Restricted Payments......................................... 54
Section 4.09. Transactions with Affiliates................................ 58
Section 4.10. Liens....................................................... 59
Section 4.11. Asset Sales................................................. 60
Section 4.12. Issuances of Guarantees by Restricted Subsidiaries.......... 63
Section 4.13. Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries..................................... 63
Section 4.14. Sale Leaseback Transactions................................. 65
Section 4.15. Lines of Business........................................... 65
Section 4.16. Unrestricted Subsidiaries................................... 65
Section 4.17. Payments for Consent........................................ 67
Section 4.18. Offer to Repurchase upon a Change of Control................ 67
Section 4.19. Corporate Existence......................................... 69
ARTICLE FIVE
SUCCESSORS................................................................. 69
Section 5.01. Consolidation, Merger and Sale of Assets.................... 69
ARTICLE SIX
DEFAULTS AND REMEDIES...................................................... 71
Section 6.01. Events of Default........................................... 71
Section 6.02. Acceleration................................................ 72
Section 6.03. Other Remedies.............................................. 73
Section 6.04. Waiver of Past Defaults..................................... 74
Section 6.05. Control by Majority......................................... 74
Section 6.06. Limitation on Suits......................................... 74
Section 6.07. Rights of Holders of Notes to Receive Payment............... 75
Section 6.08. Collection Suit by Trustee.................................. 75
Section 6.09. Trustee May File Proofs of Claim............................ 75
Section 6.10. Priorities.................................................. 75
Section 6.11. Undertaking for Costs....................................... 76
ARTICLE SEVEN
TRUSTEE.................................................................... 76
Section 7.01. Duties of Trustee........................................... 76
Section 7.02. Certain Rights of Trustee................................... 77
Section 7.03. Individual Rights of Trustee................................ 79
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Section 7.04. Trustee's Disclaimer........................................ 79
Section 7.05. Notice of Default........................................... 79
Section 7.06. Reports by Trustee to Holders of the Notes.................. 79
Section 7.07. Compensation and Indemnity.................................. 80
Section 7.08. Replacement of Trustee...................................... 80
Section 7.09. Successor Trustee by Merger, Etc............................ 81
Section 7.10. Eligibility; Disqualification............................... 81
Section 7.11. Preferential Collection of Claims Against Company........... 82
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE......................................... 82
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.... 82
Section 8.02. Legal Defeasance and Discharge.............................. 82
Section 8.03. Covenant Defeasance......................................... 82
Section 8.04. Conditions to Legal Defeasance or Covenant Defeasance....... 83
Section 8.05. Deposited Money and U.S..................................... 84
Section 8.06. Repayment to the Company.................................... 85
Section 8.07. Reinstatement............................................... 85
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER........................................... 85
Section 9.01. Without Consent of Holders of Notes......................... 85
Section 9.02. With Consent of Holders of Notes............................ 86
Section 9.03. Compliance with Trust Indenture Act......................... 88
Section 9.04. Revocation and Effect of Consents........................... 88
Section 9.05. Notation on or Exchange of Notes............................ 88
Section 9.06. Trustee to Sign Amendments, Etc............................. 88
ARTICLE TEN
GUARANTEES................................................................. 89
Section 10.01. Guarantee................................................... 89
Section 10.02. Guarantee is in Addition to Other Security.................. 91
Section 10.03. Failure to Exercise Rights Shall Not Operate as a Waiver;
No Suspension of Remedies................................... 92
Section 10.04. Limitation on Guarantor Liability........................... 92
Section 10.05. Execution and Delivery of Guarantee......................... 92
Section 10.06. Releases of Guarantors...................................... 93
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE................................................. 93
Section 11.01. Satisfaction and Discharge.................................. 93
Section 11.02. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions............... 94
Section 11.03. Repayment to the Company.................................... 94
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ARTICLE TWELVE
MISCELLANEOUS.............................................................. 95
Section 12.01. No Adverse Interpretation of Other Agreements............... 95
Section 12.02. Notices..................................................... 95
Section 12.03. Communication by Holders with Other Holders................. 96
Section 12.04. Certificate and Opinion as to Conditions Precedent.......... 96
Section 12.05. Statements Required in Certificate or Opinion............... 96
Section 12.06. Rules by Trustee, Registrar and Agents...................... 97
Section 12.07. No Recourse Against Others.................................. 97
Section 12.08. Governing Law............................................... 97
Section 12.09. Consent to Jurisdiction..................................... 97
Section 12.10. Trust Indenture Act Controls................................ 97
Section 12.11. Successors.................................................. 98
Section 12.12. Separability Clause......................................... 98
Section 12.13. Multiple Originals.......................................... 98
Section 12.14. Acts of Holders............................................. 98
Section 12.15. Benefit of Indenture........................................ 99
Section 12.16. Table of Contents, Headings, Etc............................ 99
Section 12.17. Legal Holidays.............................................. 99
Exhibits:
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF GUARANTOR SUPPLEMENTAL INDENTURE TO BE DELIVERED BY
GUARANTORS
Exhibit G FORM OF INTERCOMPANY NOTE
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INDENTURE (this "Indenture"), dated as of February 12, 2007, among
Invacare Corporation, an Ohio corporation (the "Company"), the Initial
Guarantors (as defined herein) named on Annex A hereto and Wells Fargo Bank,
N.A., as trustee (the "Trustee").
The Company, the Initial Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders (as defined below) of the 9 3/4% Senior Notes due 2015 (the "Initial
Notes" and, together with any Exchange Notes and Additional Notes, each as
defined herein, the "Notes"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a global note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount at maturity of the Notes sold in reliance on Rule
144A.
"Acquired Debt" means Indebtedness of a Person (1) existing at the
time such Person becomes a Restricted Subsidiary or (2) assumed in connection
with the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition, as the case may be.
Acquired Debt shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a
Restricted Subsidiary, as the case may be. For the avoidance of doubt, any
Indebtedness under (1) or (2) above that is concurrently extinguished with the
underlying transaction will not be Acquired Debt.
"Additional Assets" means (i) any assets or property (other than cash,
Cash Equivalents or securities) used in the Permitted Business or any business
ancillary thereto, (ii) Investments in any other Person engaged in the Permitted
Business or any business ancillary thereto (including the acquisition from third
parties of Capital Stock of such Person) as a result of which such other Person
becomes a Restricted Subsidiary, (iii) the acquisition from third parties of
Capital Stock of a Restricted Subsidiary, (iv) Permitted Business Investments or
(v) capital expenditures of the Company or any Restricted Subsidiary in the
Company or any Restricted Subsidiary.
"Additional Interest" means any additional interest payable pursuant
to a Registration Rights Agreement.
"Additional Notes" means any further Notes (other than the Initial
Notes issued on the date of this Indenture) issued under this Indenture in
accordance with the terms of this Indenture, including Sections 2.01(e), 2.02,
2.16 and 4.07 hereof, as part of the same series as the Initial Notes issued on
the date hereof, ranking equally with those Initial Notes and having identical
terms and conditions to the Initial Notes (in all respects other than (a) the
date of issuance, (b) the issue price, (c) rights under a related Registration
Rights Agreement, if any, (d) at the option of the Company, as to the payment of
interest accruing prior to the issue date of such Additional Notes, and (e) the
first payment of interest following the issue date of such Additional Notes),
subject to compliance with Article Four hereof. The Initial Notes, any
Additional Notes subsequently issued under this Indenture and all Exchange Notes
issued in exchange therefor shall be treated as a single class for all purposes
under this
Indenture, including, without limitation, directions, waivers, amendments,
consents, redemptions and offers to purchase.
"Affiliate" means, with respect to any specified Person: (1) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (2) any other Person that
owns, directly or indirectly, 10% or more of any class or series of such
specified Person's (or any of such Person's direct or indirect parent's) Capital
Stock or any officer or director of any such specified Person or other Person
or, with respect to any natural Person, any person having a relationship with
such Person by blood, marriage or adoption not more remote than first cousin; or
(3) any other Person 10% or more of the Voting Stock of which is beneficially
owned or held directly or indirectly by such specified Person. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Premium" means, with respect to a note at any redemption
date, the greater of (i) 1.0% of the principal amount of such note and (ii) the
excess of (A) the present value at such redemption date of (1) the redemption
price of such note on February 15, 2011 (such redemption price being that
described in Section 3.07(a)) plus (2) all required remaining scheduled interest
payments due on such note through and including February 15, 2011 (excluding
accrued but unpaid interest to the redemption date), computed using a discount
rate equal to the Applicable Treasury Rate plus 0.50%, over (B) the principal
amount of such note on such redemption date, as calculated by the Company or on
behalf of the Company by such Person as the Company shall designate; provided
that such calculation shall not be a duty or obligation of the applicable
Trustee.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Applicable Treasury Rate" means, as of any redemption date, the yield
to maturity as of such redemption date of United States Treasury securities with
a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become publicly available at
least two Business Days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the period from the redemption date to February 15,
2011; provided, however that if the period from the redemption date to February
15, 2011, is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
will be used.
"Asset Sale" means (1) the sale, conveyance, transfer or other
disposition, whether in a single transaction or a series of related
transactions, of property or assets (including by way of a Sale and Lease-Back
Transaction) of the Company or any of its Restricted Subsidiaries (each referred
to in this definition as a "disposition"); or (2) the issuance or sale of equity
interests of any Restricted Subsidiary (other than Preferred Stock of Restricted
Subsidiaries issued in compliance with Section 4.07), whether in a single
transaction or a series of related transactions; in each case, other than: (a)
any disposition of Cash Equivalents, hedging contracts, financial instruments or
obsolete or worn-out equipment in the ordinary course of business or disposition
of assets subject to a casualty loss or any disposition of inventory or goods
(or other assets) held for sale in the ordinary course of business; (b) the
disposition of all or substantially all of the assets of the Company governed
by, and in a manner permitted pursuant to, Section 5.01; (c) the making of any
Restricted Payment or Permitted Investment that is permitted to be
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made, and is made, under Section 4.08; (d) any disposition of assets or issuance
or sale of equity interests of the Company or any Restricted Subsidiary in any
transaction or series of related transactions with an aggregate fair market
value of less than $5.0 million; (e) any disposition of property or assets or
issuance of securities by a Restricted Subsidiary of the Company to the Company
or by the Company or a Restricted Subsidiary of the Company to another
Restricted Subsidiary of the Company; (f) to the extent allowable under Section
1031 of the Internal Revenue Code of 1986 or comparable law or regulation, any
exchange of like property (excluding any boot thereon) for use in a Permitted
Business; (g) the lease, assignment or sub-lease of any real or personal
property in the ordinary course of business; (h) any issuance or sale of equity
interests in, or Indebtedness or other securities of, an Unrestricted
Subsidiary; (i) foreclosures on assets; (j) sales of Receivables Assets and
related assets of the type specified in the definition of "Qualified Receivables
Transaction" to a Receivables Subsidiary for the fair market value thereof in a
Qualified Receivables Transaction in the ordinary course of business; (k) the
creation of Liens to the extent permitted under Section 4.10; and (l) the
surrender or waiver of any contract rights.
"Attributable Indebtedness" in respect of a Sale Leaseback Transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such Sale Leaseback Transaction (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended).
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law or foreign
law relating to bankruptcy, insolvency, receivership, winding up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all such shares that such "person" has the right to acquire, whether such
right is exercisable immediately or only after the passage of time. The term
"Beneficial Ownership" shall have a corresponding meaning.
"Board of Directors" means, with respect to any Person, the board of
directors, management committee or other equivalent management entity of such
Person or any committee thereof duly authorized to act on behalf of such board
or, in the case of a Person that is a partnership that has no such management
entity, one or more general partners of such Person.
"Board Resolution" means, with respect to a Board of Directors, a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Person or, in the case of a Person that is a partnership that has no such
officers, the Secretary or an Assistant Secretary of a general partner of such
Person, to have been duly adopted by such Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in both New York and the
city in which the Corporate Trust Office of the Trustee is located (which shall
be in Minneapolis, Minnesota as of the Issue Date) are authorized or obligated
by law or executive order to close.
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"Capital Lease Obligation" of any Person means any obligation of such
Person and its Restricted Subsidiaries on a Consolidated basis under any capital
lease of (or other agreement conveying the right to use) real or personal
property which, in accordance with GAAP, is required to be recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, units,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, other equity interests whether now outstanding
or issued after the date of this Indenture, partnership interests (whether
general or limited), limited liability company interests, any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person,
including any Preferred Stock, and any rights (other than debt securities
convertible into Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock.
"Cash Equivalents" means
(1) United States dollars or such local currencies held from time to
time in the ordinary course of business;
(2) any evidence of Indebtedness issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof,
(3) deposits, time deposit accounts, certificates of deposit,
eurodollar time deposits, money market deposits or acceptances of any
financial institution having capital and surplus in excess of $500 million
that is a member of the Federal Reserve System, in the case of U.S. banks,
and $100 million (or the U.S. dollar equivalent as of the date of
determination) in the case of non-U.S. banks, and whose senior unsecured
debt is rated at least "A-2" by S&P, or at least "P-2" by Moody's,
(4) commercial paper with a maturity of 365 days or less issued by a
corporation (other than an Affiliate or Subsidiary of the Company)
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and rated at least "A-1" by S&P
and at least "P1" by Moody's,
(5) repurchase agreements and reverse repurchase agreements relating
to marketable direct obligations issued or unconditionally guaranteed by
the United States or issued by any agency thereof and backed by the full
faith and credit of the United States maturing within 365 days from the
date of acquisition, and
(6) money market funds which invest substantially all of their assets
in securities described in the preceding clauses (1) through (5).
"Change of Control" means the occurrence of any of the following
events:
(1) the direct or indirect sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one
transaction or a series of related transactions, of all or substantially
all of the properties or assets of the Company and its Subsidiaries, taken
as a whole, to any "person" (as that term is used in Section 13(d) of the
Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company;
-4-
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) or the acquisition of any Voting
Stock of the Company, the result of which is that any "person" (as defined
above) becomes the Beneficial Owner, directly or indirectly, of more than
50% of the Voting Stock of the Company, measured by voting power rather
than number of shares;
(4) the Company consolidates with or merges with or into any Person,
or any such Person consolidates with or merges into or with the Company, in
any such event pursuant to a transaction in which the outstanding Voting
Stock of the Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where
(A) the outstanding Voting Stock of the Company is changed into
or exchanged for (1) Voting Stock of the surviving Person which is not
Disqualified Stock or (2) cash, securities and other property (other
than Capital Stock of the surviving Person) in an amount which could
be paid by the Company as a Restricted Payment under Section 4.08 (and
such amount shall be treated as a Restricted Payment subject to
Section 4.08) and
(B) immediately after such transaction, the holders of Voting
Stock of the Company immediately before such transaction beneficially
own a majority of the Voting Stock of the surviving Person; or
(5) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Securities Act and the
Exchange Act, then the body performing such duties at such time.
"Company" means Invacare Corporation, an Ohio corporation.
"Consolidated Assets" means, with respect to any Person at any date of
determination, the aggregate amount of total assets included in such Person's
most recent quarterly or annual consolidated balance sheet prepared in
accordance with GAAP.
"Consolidated EBITDA" means, at any date of determination, an amount
equal to Consolidated Net Income (Loss) of the Company and its Restricted
Subsidiaries on a consolidated basis for any period plus, (a) the following
(without duplication) to the extent deducted in calculating such Consolidated
Net Income (Loss): (i) Consolidated Interest Expense, (ii) the provision for
federal, state, local and foreign income taxes payable, (iii) depreciation and
amortization expense (including, without limitation, the amortization of debt
issuance costs), (iv) the rehab reimbursement reserve recorded as of December
31, 2006 in an aggregate amount not to exceed $27.0 million, (v) the non-cash
write-down of goodwill and general intangibles with respect to the fiscal
quarter ended December 31, 2006, (vi) non-cash compensation charges or other
non-cash expenses or charges arising from the grant of or issuance of stock,
stock options or other equity-based awards to the directors, officers and
employees of the Company and its Restricted Subsidiaries, (vii) make-whole
payments with respect to the repayment on the Issue Date of the privately placed
notes of the Company and the write-off of bank fees associated with Indebtedness
issued prior to January 1, 2007, collectively in an aggregate amount not to
exceed $15.0
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million, (viii) cash charges relating to anticipated cost savings initiatives
implemented during the Company's fiscal year 2007 in an aggregate amount not to
exceed $18.0 million and up to an aggregate amount not to exceed $10.0 million
during each of the Company's fiscal years 2008 and 2009 of potential cash
charges relating to cost savings initiatives implemented during such fiscal
year, (ix) other expenses and losses reducing such Consolidated Net Income
(Loss) which do not represent a cash item in such period or any future period
(in each case of or by the Company and its Restricted Subsidiaries for any such
period), and (x) bank or lending fees classified as selling, general and
administrative expenses, minus (b) the following to the extent included in
calculating such Consolidated Net Income (Loss): (i) federal, state, local and
foreign income tax credits and (ii) all non-cash items increasing Consolidated
Net Income (Loss) (in each case of or by the Company and its Restricted
Subsidiaries for any such period).
"Consolidated Interest Coverage Ratio" of any Person means, for any
period, the ratio of
(a) Consolidated EBITDA to
(b) without duplication, the sum of Consolidated Interest Expense for
such period and any cash dividends paid on any Disqualified Stock or
Preferred Stock of such Person and its Restricted Subsidiaries during such
period,
in each case after giving pro forma effect (as calculated in accordance with
Article 11 of Regulation S-X under the Securities Act or any successor
provision) to, without duplication,
(1) the incurrence of the Indebtedness giving rise to the need to make
such calculation and (if applicable) the application of the net proceeds
therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred,
on the first day of such period;
(2) the incurrence, repayment or retirement of any other Indebtedness
by the Company and its Restricted Subsidiaries since the first day of such
period as if such Indebtedness was incurred, repaid or retired at the
beginning of such period (except that, in making such computation, the
amount of Indebtedness under any revolving credit facility shall be
computed based upon the average daily balance of such Indebtedness during
such period);
(3) in the case of Acquired Debt or any acquisition occurring at the
time of the incurrence of such Indebtedness, the related acquisition,
assuming such acquisition had been consummated on the first day of such
period; and
(4) any acquisition or disposition by the Company and its Restricted
Subsidiaries of any company or any business or any assets out of the
ordinary course of business, whether by merger, stock purchase or sale or
asset purchase or sale, or any related repayment of Indebtedness, in each
case since the first day of such period, assuming such acquisition or
disposition had been consummated on the first day of such period;
provided that
(1) in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness computed on a pro forma basis
and (A) bearing a floating interest rate shall be computed as if the rate
in effect on the date of computation had been the applicable rate for the
entire period and (B) which was not outstanding during the period for which
the computation is being made but which bears, at the option of such
Person, a fixed or floating rate
-6-
of interest, shall be computed by applying at the option of such Person
either the fixed or floating rate, and
(2) in making such computation, the Consolidated Interest Expense of
such Person attributable to interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon
the average balance of such Indebtedness during the applicable period.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, the sum of
(a) all interest, premium payments, debt discount, fees, charges and
related expenses in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with GAAP, plus
(b) all interest paid or payable with respect to discontinued
operations, plus
(c) the portion of rent expense under Capital Lease Obligations that
is treated as interest in accordance with GAAP, in each case of or by the
Company and its Restricted Subsidiaries on a consolidated basis for such
period, plus
(d) the interest expense under any Guaranteed Debt of such Person (to
the extent such Guaranteed Debt remains outstanding) and any Restricted
Subsidiary to the extent not included under any other clause hereof,
whether or not paid by such Person or its Restricted Subsidiaries, plus
(e) dividend requirements of the Company with respect to Disqualified
Stock and of any Restricted Subsidiary with respect to Preferred Stock
(except, in either case, dividends payable solely in shares of Qualified
Capital Stock of the Company or such Restricted Subsidiary, as the case may
be).
"Consolidated Net Income (Loss)" of any Person means, for any period,
the Consolidated net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a Consolidated basis as determined in accordance
with GAAP, adjusted, to the extent included in calculating such net income (or
loss), by excluding, without duplication,
(1) all extraordinary gains or losses (less all fees and expenses
relating thereto) net of taxes,
(2) the portion of net income (or loss) of such Person and its
Restricted Subsidiaries on a Consolidated basis allocable to minority
interests in unconsolidated Persons or Unrestricted Subsidiaries to the
extent that cash dividends or distributions have not actually been received
by such Person or one of its Consolidated Restricted Subsidiaries,
(3) any gain or loss, net of taxes, realized upon the termination of
any employee pension benefit plan,
(4) gains or losses (less all fees and expenses relating thereto), net
of taxes, in respect of dispositions of assets other than in the ordinary
course of business,
-7-
(5) the net income of any Restricted Subsidiary to the extent that the
declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders,
(6) any impairment charge or write-down of non-current assets in each
case pursuant to GAAP,
(7) any non-cash expenses or charges resulting from stock, stock
option or other equity based awards,
(8) any cumulative effect of a change in accounting principles,
(9) all deferred financing costs written off, and premiums paid, in
connection with any early extinguishment of Indebtedness, and
(10) any non-cash restructuring charges.
"Consolidated Net Tangible Assets" means, with respect to any Person
at any date of determination, the aggregate amount of total assets included in
such Person's most recent quarterly or annual consolidated balance sheet
prepared in accordance with GAAP less applicable reserves reflected in such
balance sheet, after deducting the following amounts: (a) all current
liabilities reflected in such balance sheet, and (b) all goodwill, trademarks,
patents, unamortized debt discounts and expenses and other like intangibles
reflected in such balance sheet.
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its Subsidiaries if and to the extent
the accounts of such Person and each of its Subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"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 the
Board of Directors on the date of the Indenture; 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 of Directors at the
time of such nomination or election.
"Convertible Senior Subordinated Debentures" means the up to $135
million aggregate principal amount of 4.125% Convertible Senior Subordinated
Debentures due 2027 issued by the Company under the Convertible Senior
Subordinated Debentures Indenture.
"Convertible Senior Subordinated Debentures Indenture" means the
Convertible Senior Subordinated Debentures Indenture dated as of the Issue Date,
among the Company, as issuer, certain of its Subsidiaries, as guarantors, and
Wells Fargo Bank, N.A., as trustee, pursuant to which the Convertible Senior
Subordinated Debentures are issued and under which the Notes are designated as
"Designated Senior Debt" (as defined in the Convertible Senior Subordinated
Debentures Indenture).
"Credit Facility" means one or more debt facilities (including,
without limitation, the Senior Credit Facilities), commercial paper facilities
or other debt instruments, indentures or agreements,
-8-
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables), letters
of credit or other debt obligations, in each case, as amended, restated,
modified, renewed, refunded, restructured, supplemented, replaced or refinanced
(including by means of any Qualified Receivables Transaction) from time to time
in whole or in part from time to time, including, without limitation, any
amendment increasing the amount of Indebtedness incurred or available to be
borrowed thereunder, extending the maturity of any Indebtedness incurred
thereunder or contemplated thereby or deleting, adding or substituting one or
more parties thereto (whether or not such added or substituted parties are banks
or other institutional lenders).
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.07 hereof,
substantially in the form of Exhibit A1 hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.04 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors of the
Company who does not have any material direct or indirect financial interest in
or with respect to such transaction or series of related transactions.
"Disqualified Stock" means any Capital Stock that, either by its terms
or by the terms of any security into which it is convertible or exchangeable or
otherwise, is or upon the happening of an event or passage of time would be,
required to be redeemed prior to the final Stated Maturity of the principal of
the Notes or is redeemable at the option of the holder thereof at any time prior
to such final Stated Maturity (other than upon a change of control of or sale of
assets by the Company in circumstances where the Holders of the Notes would have
similar rights), or is convertible into or exchangeable for debt securities at
any time prior to such final Stated Maturity at the option of the holder
thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute, and the rules and regulations promulgated by the
Commission thereunder.
"Exchange Notes" means the Notes issued in an Exchange Offer in
accordance with Section 2.07(f) hereof.
"Exchange Offer" means an exchange offer that may be effected pursuant
to a Registration Rights Agreement.
"Exchange Offer Registration Statement" means an Exchange Offer
Registration Statement that may be filed pursuant to a Registration Rights
Agreement.
-9-
"Exchanged Properties" means properties or assets or Capital Stock
representing an equity interest in or assets used or useful in the Permitted
Business, received by the Company or a Restricted Subsidiary in a substantially
concurrent purchase and sale, trade or exchange as a portion of the total
consideration for other such properties or assets.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length free market transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy. Fair Market Value shall
be determined by the Board of Directors of the Company acting in good faith and
shall be evidenced by a Board Resolution of the Board of Directors of the
Company.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
that (x) is not organized under the laws of the United States of America or any
State thereof or the District of Columbia, or (y) was organized under the laws
of the United States of America or any State thereof or the District of Columbia
that has no material assets other than Capital Stock of one or more foreign
entities of the type described in clause (x) above and is not a guarantor of
Indebtedness of a domestic entity under the Senior Credit Facilities.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, the Public Company Accounting
Oversight Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect (i) with respect to periodic reporting requirements, from time to time,
and (ii) otherwise on the Issue Date.
"Global Note Legend" means the legend set forth in Section
2.07(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A1 or A2 hereto, as appropriate, issued in accordance with
Section 2.01, 2.07(b)(iii), 2.07(b)(iv), 2.07(d)(i), 2.07(d)(ii), or
2.07(d)(iii) of this Indenture.
"Guarantee" means the guarantee by any Guarantor of the Company's
Indenture Obligations; provided that the term "Guarantee" shall not include
Standard Receivables Undertakings in a Qualified Receivables Transaction.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of Indebtedness
below guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an agreement
(1) to pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness,
(2) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss,
-10-
(3) to supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services without requiring
that such property be received or such services be rendered),
(4) to maintain working capital or equity capital of the debtor, or
otherwise to maintain the net worth, solvency or other financial condition
of the debtor or to cause such debtor to achieve certain levels of
financial performance or
(5) otherwise to assure a creditor against loss;
provided that the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business.
"Guarantor" means each of the Initial Guarantors and any other
Subsidiary which is a guarantor of the Notes, including any Person that is
required after the date of this Indenture to execute a guarantee of the Notes
pursuant to Section 4.12 hereof until a successor replaces such party pursuant
to the applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"Holder" means the Person in whose name a Note is, at the time of
determination, registered on the Registrar's books.
"IAI Global Note" means the global Note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"Indebtedness" means, with respect to any Person, without duplication,
(1) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade
payables and other accrued current liabilities arising in the ordinary
course of business, but including, without limitation, all obligations,
contingent or otherwise, of such Person in connection with any letters of
credit issued under letter of credit facilities, acceptance facilities or
other similar facilities,
(2) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments,
(3) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person to the extent of the value of such property (even if the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business,
(4) all obligations under or in respect of currency exchange
contracts, commodity hedging arrangements and Interest Rate Agreements of
such Person (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),
(5) all Capital Lease Obligations of such Person,
(6) the Attributable Indebtedness related to any Sale Leaseback
Transaction,
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(7) all Indebtedness referred to in clauses (1) through (6) above of
other Persons and all dividends of other Persons, to the extent the payment
of such Indebtedness or dividends is secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien, upon or with respect to property to the extent of the
value of such property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness,
(8) all Guaranteed Debt of such Person,
(9) all Disqualified Stock issued by such Person valued at the greater
of its voluntary or involuntary maximum fixed repurchase price plus accrued
and unpaid dividends,
(10) Preferred Stock of any Restricted Subsidiary of the Company or
any Guarantor, and
(11) any amendment, supplement, modification, deferral, renewal,
extension, refunding or refinancing of any liability of the types referred
to in clauses (1) through (10) above.
For purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Disqualified Stock, such Fair Market
Value to be determined in good faith by the Board of Directors of the issuer of
such Disqualified Stock.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the Notes, including any Guarantor,
to pay principal of, premium, if any, and interest when due and payable, and all
other amounts due or to become due under or in connection with this Indenture,
the Notes and the performance of all other obligations to the Trustee and the
holders under this Indenture and the Notes, according to the respective terms
thereof.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Guarantors" has the meaning set forth in the preamble hereto.
"Initial Notes" has the meaning stated in the second paragraph of this
Indenture and means Notes other than any Exchange Notes and Additional Notes
issued under this Indenture.
"Initial Purchasers" means (i) Banc of America Securities LLC, KeyBanc
Capital Markets, a Division of McDonald Investments Inc., BMO Capital Markets
Corp. and Sun Trust Capital Markets, Inc., as initial purchasers under the
Purchase Agreement dated February 7, 2007, among the Company, the Guarantors
party thereto and the Initial Purchasers and (ii) with respect to any Additional
Notes issued subsequent to the Issue Date, any investment bank acting as initial
purchaser in connection with the issuance and sale of such Additional Notes.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as described in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
-12-
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. "Investment" shall exclude
direct or indirect advances to customers or suppliers in the ordinary course of
business that are, in conformity with GAAP, recorded as accounts receivable,
prepaid expenses or deposits on the Company's or any Restricted Subsidiary's
balance sheet, endorsements for collection or deposit arising in the ordinary
course of business, extensions of trade credit on commercially reasonable terms
in accordance with normal trade practices and travel expenses and similar
advances to officers and employees arising in the ordinary course of business.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Capital Stock of any direct or indirect Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Subsidiary of the Company (other than the sale of all of
the outstanding Capital Stock of such Subsidiary), the Company will be deemed to
have made an Investment on the date of such sale or disposition equal to the
Fair Market Value of the Company's Investments in such Subsidiary that were not
sold or disposed of in an amount determined as provided in Section 4.08 hereof.
"Issue Date" means the original issue date of the Initial Notes under
this Indenture.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with an Exchange Offer.
"Lien" means any mortgage or deed of trust, charge, pledge, lien
(statutory or otherwise), privilege, security interest, assignment, deposit,
arrangement, easement, hypothecation, claim, preference, priority or other
encumbrance upon or with respect to any property of any kind (including any
conditional sale, capital lease or other title retention agreement, any leases
in the nature thereof, and any agreement to give any security interest), real or
personal, movable or immovable, now owned or hereafter acquired. A Person will
be deemed to own subject to a Lien any property which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease Obligation or other title retention agreement.
"Liquid Securities" means securities (i) of an issuer that is not an
Affiliate of the Company, (ii) that are publicly traded on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq Stock Market and (iii) as to
which the Company is not subject to any restrictions on sale or transfer
(including any volume restrictions under Rule 144 under the Securities Act or
any other restrictions imposed by the Securities Act) or as to which a
registration statement under the Securities Act covering the resale thereof is
in effect for as long as the securities are held; provided that securities
meeting the requirements of clauses (i), (ii) and (iii) above shall be treated
as Liquid Securities from the date of receipt thereof until and only until the
earlier of (a) the date on which such securities are sold or exchanged for cash
or Cash Equivalents and (b) 150 days following the date of receipt of such
securities. If such securities are not sold or exchanged for cash or Cash
Equivalents within 150 days of receipt thereof, for purposes of determining
whether the transaction pursuant to which the Company or a Restricted Subsidiary
received the securities was in compliance with Section 4.11 hereof, such
securities shall be deemed not to have been Liquid Securities at any time.
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"Maturity" means, when used with respect to the Notes, the date on
which the principal of the Notes becomes due and payable as therein provided or
as provided in this Indenture, whether at Stated Maturity, the Asset Sale
Purchase Date, the Change of Control Purchase Date or the redemption date and
whether by declaration of acceleration, Prepayment Offer in respect of Excess
Proceeds, Change of Control Offer in respect of a Change of Control, call for
redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereof.
"Net Available Cash" from an Asset Sale or Sale Leaseback Transaction
means cash proceeds received therefrom (including (i) any cash proceeds received
by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise, but only as and when received and (ii) the Fair Market
Value of Liquid Securities and Cash Equivalents, and excluding (a) any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the assets or property that is the
subject of such Asset Sale or Sale Leaseback Transaction and (b) except to the
extent subsequently converted to cash, Cash Equivalents or Liquid Securities
within 180 days after such Asset Sale or Sale Leaseback Transaction, or
consideration other than as identified in the immediately preceding clauses (i)
and (ii)), in each case net of:
(a) all legal, title and recording expenses, commissions and
other fees and expenses incurred, and all federal, state, foreign and local
taxes required to be paid or accrued as a liability under GAAP as a
consequence of such Asset Sale or Sale Leaseback Transaction,
(b) all payments made on any Indebtedness (but specifically
excluding Indebtedness of the Company and its Restricted Subsidiaries
assumed in connection with or in anticipation of such Asset Sale or Sale
Leaseback Transaction) which is secured by any assets subject to such Asset
Sale or Sale Leaseback Transaction, in accordance with any Lien upon such
assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Sale or Sale Leaseback Transaction or by applicable
law, be repaid out of the proceeds from such Asset Sale or Sale Leaseback
Transaction, provided that such payments are made in a manner that results
in the permanent reduction in the balance of such Indebtedness and, if
applicable, a permanent reduction in any outstanding commitment for future
incurrences of Indebtedness thereunder,
(c) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Sale or Sale Leaseback Transaction and
(d) 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 Sale or Sale Leaseback
Transaction and retained by the Company or any Restricted Subsidiary after
such Asset Sale or Sale Leaseback Transaction;
provided, however, that if any consideration for an Asset Sale or Sale Leaseback
Transaction (which would otherwise constitute Net Available Cash) is required to
be held in escrow pending determination of whether a purchase price adjustment
will be made, such consideration (or any portion thereof) shall become Net
Available Cash only at such time as it is released to such Person or its
Restricted Subsidiaries from escrow.
"Net Cash Proceeds" means with respect to any issuance or sale of
Capital Stock or options, warrants or rights to purchase Capital Stock, or debt
securities or Capital Stock that have been converted into or exchanged for
Capital Stock as provided under Section 4.08 hereof, the proceeds of
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such issuance or sale in the form of cash or Cash Equivalents including payments
in respect of deferred payment obligations when received in the form of, or
stock or other assets when disposed of for, cash or Cash Equivalents (except to
the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary), net of attorney's fees, accountant's fees
and brokerage, consultation, underwriting and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning stated in the second paragraph of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture. For all purposes of this Indenture:
(a) the term "Notes" shall include all Additional Notes issued
hereunder and any Exchange Notes to be issued and exchanged for any Notes
pursuant to an applicable Registration Rights Agreement and this Indenture, and
(b) (i) all Exchange Notes that are issued and exchanged for the
Initial Notes and (ii) all Additional Notes issued hereunder and Exchange Notes
that are issued and exchanged for such Additional Notes, shall be treated as a
single class.
"Obligations" means any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the final Offering Memorandum, dated
February 7, 2007, relating to the Initial Notes.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person or in the case of
a Person that is a partnership that has no such officers, any such officer of a
general partner of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by at least two Officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Section
12.05 hereof.
"Pari Passu Indebtedness" means any Indebtedness of the Company or a
Guarantor that is pari passu in right of payment to the Notes or a Guarantee, as
the case may be.
"Pari Passu Offer" means an offer by the Company or a Guarantor to
purchase all or a portion of Pari Passu Indebtedness to the extent required by
the indenture or other agreement or instrument pursuant to which such Pari Passu
Indebtedness was issued.
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"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means any business conducted by the Company or
any of its Subsidiaries as described in the Offering Memorandum and any
businesses that, in the good faith judgment of the Board of Directors of the
Company, are reasonably related, ancillary, supplementary or complementary
thereto, or reasonable extensions thereof.
"Permitted Investment" means:
(1) Investments in any Restricted Subsidiary (including the purchase
of Capital Stock of a Restricted Subsidiary) or any Person which, as a
result of such Investment, (a) becomes a Restricted Subsidiary or (b) is
merged or consolidated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or any Restricted
Subsidiary;
(2) Indebtedness of the Company or a Restricted Subsidiary described
under clauses (5), (6), (7) and (13) of the definition of "Permitted Debt"
and the related Investment;
(3) Investments in any of the Notes;
(4) Cash Equivalents or cash;
(5) Investments acquired by the Company or any Restricted Subsidiary
in connection with an asset sale permitted under Section 4.11 hereof to the
extent such Investments are non-cash proceeds as permitted under such
Section;
(6) Investments in existence on the date of this Indenture and any
extensions or renewals thereof;
(7) Investments acquired in exchange for the issuance of Capital Stock
of the Company or an Unrestricted Subsidiary;
(8) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility and worker's compensation, performance and
other similar deposits provided to third parties in the ordinary course of
business;
(9) loans or advances to employees of the Company in the ordinary
course of business for bona fide business purposes of the Company and its
Restricted Subsidiaries (including travel, entertainment and relocation
expenses) in the aggregate amount outstanding at any one time of not more
than $2.5 million;
(10) any Investments received in good faith in settlement or
compromise of obligations of trade creditors or customers that were
incurred in the ordinary course of business, including pursuant to any plan
of reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer;
(11) other Investments in the aggregate amount outstanding at any one
time of up to $15.0 million;
-16-
(12) the acquisition by a Receivables Subsidiary in connection with a
Qualified Receivables Transaction of Capital Stock of a trust or other
Person established by such Receivables Subsidiary to effect such Qualified
Receivables Transaction; and any Investment by the Company or a Subsidiary
of the Company in a Receivables Subsidiary or any Investment by a
Receivables Subsidiary in any other Person in connection with a Qualified
Receivables Transaction; provided that such Investment is in the form of a
customary promissory note from the Company or a Subsidiary, contributions
of additional Receivables Assets and/or cash and Cash Equivalents or equity
interests; and
(13) Investments in Invatection Insurance Company to the extent
required under the State of Vermont regulatory authority or law.
In connection with any assets or property contributed or transferred
to any Person as an Investment, such property and assets shall be equal to the
Fair Market Value at the time of Investment, without regard to subsequent
changes in value.
"Permitted Lien" means:
(a) any Lien existing as of the date of this Indenture on Indebtedness
existing on the date of this Indenture and not otherwise referred to in
this definition;
(b) any Lien with respect to a Credit Facility or any successor Credit
Facility so long as the aggregate principal amount outstanding under such
Credit Facility or any successor Credit Facility does not exceed the
principal amount which could be borrowed under clause (1) of the definition
of Permitted Debt;
(c) any Lien securing Indebtedness permitted to be incurred pursuant
to clause (15) and (16) of the definition of Permitted Debt;
(d) any Lien granted by Invatection Insurance Company or any other
captive insurance company to the extent such Indebtedness was incurred in
accordance with the laws or regulations of the State of Vermont or other
jurisdiction;
(e) any Lien securing goods sold by a Restricted Subsidiary located in
Europe to the extent such Lien is limited to the value of such goods sold;
(f) any Lien securing the Notes, the Guarantees and other obligations
arising under this Indenture, and any Liens in favor of the trustee or
similar agent under the Convertible Senior Subordinated Debentures
Indenture or in favor of any other trustee or similar agent in respect of
its services as a trustee or agent and not on behalf of the holders of the
debt in future debt instruments;
(g) any Lien in favor of the Company or a Restricted Subsidiary;
(h) any Lien arising by reason of:
(1) any judgment, decree or order of any court, so long as such
Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment, decree
or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
-17-
(2) taxes, assessments or governmental charges or claims that are
not yet delinquent or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted,
provided that any reserve or other appropriate provision as will be
required in conformity with GAAP will have been made therefor;
(3) security made in the ordinary course of business in
connection with workers'compensation, unemployment insurance or other
types of social security;
(4) good faith deposits in connection with tenders, leases and
contracts (other than contracts for the payment of money);
(5) zoning restrictions, easements, licenses, reservations, title
defects, rights of others for rights of way, utilities, sewers,
electric lines, telephone or telegraph lines, and other similar
purposes, provisions, covenants, conditions, waivers, restrictions on
the use of property or minor irregularities of title (and with respect
to leasehold interests, mortgages, obligations, Liens and other
encumbrances incurred, created, assumed or permitted to exist and
arising by, through or under a landlord or owner of the leased
property, with or without consent of the lessee), none of which
materially impairs the use of any parcel of property material to the
operation of the business of the Company or any Subsidiary or the
value of such property for the purpose of such business;
(6) deposits to secure public or statutory obligations, or in
lieu of surety or appeal bonds;
(7) operation of law in favor of mechanics, carriers,
warehousemen, landlords, materialmen, laborers, employees or
suppliers, incurred in the ordinary course of business for sums which
are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the
collection thereof; or
(8) Indebtedness or other obligations of a Wholly Owned
Restricted Subsidiary owing to the Company or another Wholly Owned
Restricted Subsidiary of the Company.
(i) any Lien securing Acquired Debt created prior to (and not created
in connection with, or in contemplation of) the incurrence of such
Indebtedness by the Company or any Subsidiary; provided that such Lien only
secures the assets acquired in connection with the transaction pursuant to
which the Acquired Debt became an obligation of the Company or a Restricted
Subsidiary;
(j) any Lien to secure performance bids, leases (including, without
limitation, statutory and common law landlord's liens), statutory
obligations, surety and appeal bonds, letters of credit and other
obligations of a like nature and incurred in the ordinary course of
business of the Company or any Subsidiary and not securing or supporting
Indebtedness;
(k) any Lien securing Indebtedness permitted to be incurred under
Interest Rate Agreements incurred pursuant to clause (7) of the definition
of Permitted Debt, so long as none of such Indebtedness constitutes debt
for borrowed money;
(l) any Lien securing Capital Lease Obligations or Purchase Money
Obligations incurred in accordance with this Indenture (pursuant to clause
(8) of the definition of Permitted
-18-
Debt) and which are incurred or assumed solely in connection with the
acquisition, development or construction of real or personal, moveable or
immovable property commencing within 90 days of such incurrence or
assumption; provided that such Liens only extend to such acquired,
developed or constructed property, such Liens secure Indebtedness in an
amount not in excess of the original purchase price or the original cost of
any such assets or repair, addition or improvement thereto (including the
cost of any installation and software), and the incurrence of such
Indebtedness is permitted by Section 4.07 hereof;
(m) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Company or any
of its Restricted Subsidiaries;
(n) (1) Liens on property, assets or shares of stock of a Person at
the time such Person becomes a Restricted Subsidiary or is merged with or
into or consolidated with the Company or any of its Restricted
Subsidiaries; provided, however, that such Liens are not created, incurred
or assumed in connection with, or in contemplation of, such other Person
becoming a Restricted Subsidiary or such merger or consolidation; provided
further that any such Lien may not extend to any other property owned by
the Company or any Restricted Subsidiary and assets fixed or appurtenant
thereto; and (2) Liens on property, assets or shares of capital stock
existing at the time of acquisition thereof by the Company or any of its
Restricted Subsidiaries; provided, however, that such Liens are not
created, incurred or assumed in connection with, or in contemplation of,
such acquisition and do not extend to any property other than the property
so acquired;
(o) any Lien incurred in connection with a transaction of the type
contemplated pursuant to clause (13) of the definition of Permitted Debt;
(p) any extension, renewal, refinancing or replacement, in whole or in
part, of any Lien described in the foregoing clauses (a) through (o) so
long as no additional collateral is granted as security thereby; and
(q) in addition to the items referred to in clauses (a) through (p)
above, Liens of the Company and its Restricted Subsidiaries on Indebtedness
in an aggregate amount which, when taken together with the aggregate amount
of all Liens on Indebtedness incurred pursuant to clause (q) and then
outstanding, will not exceed 10.0% of Consolidated Net Tangible Assets at
any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to refund, refinance, replace, defease or discharge
other Indebtedness of the Company or any of its Restricted Subsidiaries (other
than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged (plus all accrued interest on
the Indebtedness and the amount of all fees and expenses, including
premiums, incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged;
-19-
(3) if the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness is subordinated in right of payment
to the Notes on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged; and
(4) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary that is the obligor on the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same Indebtedness as that evidenced by such
particular Note; and any Note authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same
Indebtedness as the lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any Person, any Capital Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of such Person, over the
Capital Stock of any other class in such Person.
"Private Placement Legend" means the legend set forth in Section
2.07(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Public Equity Offering" means an underwritten public offering of
common stock (other than Disqualified Stock) of the Company pursuant to a
registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form S-4
(or any successor form covering substantially the same transactions), Form S-8
(or any successor form covering substantially the same transactions) or
otherwise relating to equity securities issuable under any employee benefit plan
of the Company).
"Purchase Money Obligation" means any Indebtedness secured by a Lien
on assets related to the business of the Company and any additions and
accessions thereto, which are purchased or constructed by the Company at any
time after the Notes are issued; provided that
(1) the security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such assets is created
(collectively, a "Purchase Money Security Agreement") shall be entered into
within 90 days after the purchase or substantial completion of the
construction of such assets and shall at all times be confined solely to
the assets so purchased or acquired, any additions and accessions thereto
and any proceeds therefrom,
(2) at no time shall the aggregate principal amount of the outstanding
Indebtedness secured thereby be increased, except in connection with the
purchase of additions and accessions thereto and except in respect of fees
and other obligations in respect of such Indebtedness, and
(3) (A) the aggregate outstanding principal amount of Indebtedness
secured thereby (determined on a per asset basis in the case of any
additions and accessions) shall not at the time
-20-
such Purchase Money Security Agreement is entered into exceed 100% of the
purchase price to the Company of the assets subject thereto (including the
cost of any installation and software) or (B) the Indebtedness secured
thereby shall be with recourse solely to the assets so purchased or
acquired (including the cost of any installation software), any additions
and accessions thereto and any proceeds therefrom.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Disqualified Stock.
"Qualified Receivables Transaction" means any transaction or series of
transactions entered into by the Company or any of its Subsidiaries pursuant to
which the Company or any of its Subsidiaries sells, conveys or otherwise
transfers to (1) a Receivables Subsidiary (in the case of a transfer by the
Company or any of its Subsidiaries) or (2) any other Person (in the case of a
transfer by a Receivables Subsidiary), or transfers an undivided interest in or
grants a security interest in, any Receivable Assets (whether now existing or
arising in the future) of the Company or any of its Subsidiaries, and any assets
related thereto including, without limitation, all collateral securing such
Receivable Assets, all contracts and all guarantees or other obligations in
respect of such Receivable Assets, proceeds of such Receivable Assets and other
assets which are customarily transferred, or in respect of which security
interest are customarily granted, in connection with asset securitization
transactions involving Receivable Assets and any hedging obligations entered
into by the Company or any of its Subsidiaries in connection with such
Receivable Assets.
"Receivables Assets" means any accounts receivable, instruments,
chattel paper, contract rights, general intangibles or revenue streams or any
rights to collection of any of the foregoing (whether now existing or arising or
acquired in the future) subject to a Qualified Receivables Transaction and any
assets related thereto, including, without limitation, all collateral securing
such assets including any pledged bank accounts and lock boxes, all contracts
and contract rights and all guarantees or other obligations in respect of such
assets and all proceeds of the foregoing.
"Receivables Subsidiary" means a Subsidiary of the Company (or another
Person formed for the purposes of engaging in a Qualified Receivables
Transaction in which the Company or any of its Subsidiaries makes an Investment
and to which the Company or any of its Subsidiaries transfers Receivables Assets
and related assets) which engages in no activities other than in connection with
the financing of Receivables Assets of the Company or its Subsidiaries, and any
business or activities incidental or related to such business, and which is
designated by the Board of Directors of the Company (as provided below) to be a
Receivables Subsidiary (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (1) is guaranteed by the Company
or any Subsidiary of the Company (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant to Standard
Receivables Undertakings), (2) is recourse to or obligates the Company or any
Subsidiary of the Company in any way other than pursuant to Standard Receivables
Undertakings or (3) subjects any property or assets of the Company or any
Subsidiary of the Company (other than Receivables Assets and related assets as
provided in the definition of "Qualified Receivables Transaction") directly or
indirectly, contingently or otherwise, to the satisfaction thereof other than
pursuant to Standard Receivables Undertakings, (b) with which neither the
Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding (other than on terms which the Company reasonably
believes to be no less favorable to the Company or such Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company) other than fees payable in the ordinary course of business in
connection with servicing Receivables Assets, and (c) with which neither the
Company nor any Subsidiary of the Company has any obligation to maintain or
-21-
preserve such entity's financial condition or cause such entity to achieve
certain levels of operating results. Any such designation by the Board of
Directors of the Company or such other Person will be evidenced to the Trustee
by filing with the Trustee a certified copy of a resolution of the Board of
Directors of the Company or such Person giving effect to such designation,
together with an officers' certificate certifying that such designation complied
with the foregoing conditions.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement among the Company, the Initial Guarantors and the Initial Purchasers
named therein, dated as of February 12, 2007, relating to the Initial Notes, and
(ii) with respect to any Additional Notes issued subsequent to the Issue Date,
any registration rights agreement entered into for the benefit of the holders of
such Additional Notes, if any.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or a Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note in
the form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount at maturity of the Regulation S Temporary Global
Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note in
the form of Exhibit A2 hereto bearing the Global Note Legend, the Private
Placement Legend and the Temporary Regulation S Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued in
a denomination equal to the outstanding principal amount at maturity of the
Notes initially sold in reliance on Rule 903 of Regulation S.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Period" means the 40-day distribution compliance period,
as defined in Rule 902(f) of Regulation S.
"Restricted Subsidiary" means any Subsidiary of the Company that has
not been designated by the Board of Directors of the Company by a Board
Resolution delivered to the Trustee as an Unrestricted Subsidiary pursuant to
and in compliance with Section 4.18 hereof.
"Revolving Credit Facility" means the revolving credit facility of
$150 million dated as of February 12, 2007 with the Company as borrower and Bank
of America, N.A., National City Bank and KeyBank National Association as initial
lenders thereunder, with National City Bank as administrative
-22-
agent, National City Bank and KeyBank National Association as joint lead
arrangers, Banc of America Securities LLC, National City Bank and KeyBank
National Association as joint book running managers, KeyBank National
Association as syndication agent and Bank of America, N.A. as documentation
agent thereunder.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Sale Leaseback Transaction" means, with respect to the Company or any
of its Restricted Subsidiaries, any arrangement with any Person providing for
the leasing by the Company or any of its Restricted Subsidiaries of any
principal property, acquired or placed into service more than 180 days prior to
such arrangement, whereby such property has been or is to be sold or transferred
by the Company or any of its Restricted Subsidiaries to such Person.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations promulgated by the Commission
thereunder.
"Senior Credit Facilities" means, collectively, the Revolving Credit
Facility and the Term B Credit Facility.
"Shelf Registration Statement" means a Shelf Registration Statement
that may be filed pursuant to a Registration Rights Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor thereof.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission as in effect on the date of this
Indenture.
"Standard Receivables Undertakings" means representations, warranties,
covenants and indemnities, including, without limitation, any indemnification of
directors, entered into by the Company or any Subsidiary of the Company which
the Company has determined in good faith to be reasonably customary in a
Qualified Receivables Transaction, including, without limitation, those relating
to the servicing of the assets of a Receivables Subsidiary.
"Stated Maturity" means, when used with respect to any Indebtedness or
any installment of interest thereon, the dates specified in such Indebtedness as
the fixed date on which the principal of such Indebtedness or such installment
of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor subordinated in right of payment to the Notes or a Guarantee, as the
case may be.
"Subsidiary" of a Person means
-23-
(1) any corporation more than 50% of the outstanding voting power of
the Voting Stock of which is owned or controlled, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person, or by
such Person and one or more other Subsidiaries thereof, or
(2) any limited partnership of which such Person or any Subsidiary of
such Person is a general partner, or
(3) any other Person in which such Person, or one or more other
Subsidiaries of such Person, or such Person and one or more other
Subsidiaries, directly or indirectly, has more than 50% of the outstanding
partnership or similar interests or has the power, by contract or
otherwise, to direct or cause the direction of the policies, management and
affairs thereof.
"Temporary Regulation S Legend" means the legend set forth in Section
2.07(h) hereof, which is required to be placed on the Regulation S Temporary
Global Note.
"Term B Credit Facility" means the Term B facility aggregating $250
million dated as of February 12, 2007 with the Company as borrower and Bank of
America, N.A., National City Bank and KeyBank National Association as initial
lenders thereunder, with National City as administrative agent, Banc of America
Securities LLC and KeyBank National Association as joint lead arrangers, Banc of
America Securities LLC, National City Bank and KeyBank National Association as
joint book running managers, KeyBank National Association as syndication agent
and Bank of America, N.A. as documentation agent thereunder.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, or any successor statute.
"Trustee" means Wells Fargo Bank, N.A. until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Note substantially
in the form of Exhibit A1 attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company (other
than a Guarantor) designated as such pursuant to and in compliance with Section
4.18 hereof.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted Subsidiary
means Indebtedness of such Unrestricted Subsidiary
(1) as to which neither the Company nor any Restricted Subsidiary is
directly or indirectly liable (by virtue of the Company or any such
Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness), except Guaranteed
Debt of the Company or any Restricted Subsidiary to any Affiliate of the
Company, in which case (unless the incurrence of such Guaranteed Debt
resulted in a Restricted Payment at the time of incurrence) the Company
shall be deemed to have made a Restricted Payment equal to
-24-
the principal amount of any such Indebtedness to the extent guaranteed at
the time such Affiliate is designated an Unrestricted Subsidiary; and
(2) which, upon the occurrence of a default with respect thereto, does
not result in, or permit any holder of any Indebtedness of the Company or
any Restricted Subsidiary to declare, a default on such Indebtedness of the
Company or any Restricted Subsidiary or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity;
provided that notwithstanding the foregoing, any Unrestricted Subsidiary may
guarantee the Notes.
"U.S. Government Obligations" means (i) securities that are (a) direct
obligations of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof; and (ii) depositary receipts issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in clause (i) above and held
by such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal or interest on any U.S. Government
Obligation which is so specified and held; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest of the U.S. Government Obligation evidenced by such
depositary receipt.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the Board of
Directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (1) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment and (b) the amount of each such principal payment by (2) the sum of all
such principal payments.
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which is owned by the Company or another Wholly Owned
Restricted Subsidiary (other than directors' qualifying shares).
-25-
Section 1.02. Other Definitions.
DEFINED
IN
TERM SECTION
- ---- -------
"Act"................................................................ 12.14
"Asset Sale Purchase Date"........................................... 4.11
"Authentication Order"............................................... 2.02
"Change of Control Offer"............................................ 4.19
"Change of Control Purchase Date".................................... 4.18
"Change of Control Purchase Notice".................................. 4.18
"Change of Control Purchase Price"................................... 4.18
"Covenant Defeasance"................................................ 8.03
"Defeasance Redemption Date"......................................... 8.04
"Designation"........................................................ 4.16
"Designation Amount"................................................. 4.16
"DTC"................................................................ 2.01
"Event of Default"................................................... 6.01
"Excess Proceeds".................................................... 4.11
"Funds in Trust"..................................................... 8.04
"incur".............................................................. 4.07
"Legal Defeasance"................................................... 8.02
"Paying Agent"....................................................... 2.04
"Permitted Consideration"............................................ 4.11
"Permitted Debt"..................................................... 4.07
"Permitted Payment".................................................. 4.08
"Prepayment Offer"................................................... 4.11
"Prepayment Offer Notice"............................................ 4.11
"Prepayment Offer Price"............................................. 4.11
"Purchase Money Security Agreement".................................. 1.01
"Registrar".......................................................... 2.04
"Related Proceedings"................................................ 12.09
"Restricted Payments"................................................ 4.08
"Revocation"......................................................... 4.16
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"Specified Courts"................................................... 12.09
"Surviving Entity"................................................... 5.01
"Surviving Guarantor Entity"......................................... 5.01
"Trustee"............................................................ 8.05
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) words in the singular include the plural, and in the plural
include the singular;
(iv) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time; and
(v) all references herein to "interest" include the Additional
Interest.
ARTICLE TWO
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A1 or A2 hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be issued in registered, global form without interest coupons and only shall be
in minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, any
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
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(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibit A1 or A2 attached hereto (including the Global Note
Legend thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Notes issued in definitive form shall be substantially in the
form of Exhibit A1 attached hereto (but without the Global Note Legend thereon
and without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee in accordance
with instructions given by the Holder thereof as required by Section 2.07
hereof.
(c) Temporary Global Notes. To the extent required by Regulation S,
Notes offered and sold in reliance on Regulation S shall be issued initially in
the form of the Regulation S Temporary Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as
custodian for The Depository Trust Company ("DTC"), and registered in the name
of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of an
Officers' Certificate from the Company certifying that the Restricted Period may
be terminated in accordance with Regulation S and that beneficial interests in
the Regulation S Temporary Global Note are permitted to be exchanged for
beneficial interests in Regulation S Permanent Global Notes. Following the
termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests in Regulation
S Permanent Global Notes pursuant to the Applicable Procedures. Simultaneously
with the authentication of Regulation S Permanent Global Notes, the Trustee
shall cancel the Regulation S Temporary Global Note. The aggregate principal
amount of the Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Clearstream shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Clearstream.
(e) Additional Notes. Notwithstanding anything else herein, with
respect to any Additional Notes issued subsequent to the date of this Indenture,
when the context requires, (1) all references in Article Two herein and
elsewhere in this Indenture to a Registration Rights Agreement shall be to the
registration rights agreement entered into with respect to such Additional
Notes, (2) any references in this Indenture to the Exchange Offer, Exchange
Offer Registration Statement, Shelf Registration Statement, Initial Purchasers,
and any other term related thereto shall be to such terms as they are defined in
such Registration Rights Agreement entered into with respect to such Additional
Notes, (3) all time periods described in the Notes with respect to the
registration of such Additional Notes shall be as provided in such Registration
Rights Agreement entered into with respect to such Additional Notes, (4) any
Additional Interest, if set forth in such Registration Rights Agreement, may be
paid to the Holders of the Additional Notes immediately prior to the making or
the consummation of the Exchange Offer regardless of any other provisions
regarding record dates herein and (5) all provisions of this Indenture shall be
construed and interpreted to permit the issuance of such Additional Notes and to
allow
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such Additional Notes to become fungible and interchangeable with the Initial
Notes originally issued under this Indenture (and Exchange Notes issued in
exchange therefor). Indebtedness represented by Additional Notes shall be
subject to the covenants contained in this Indenture.
Section 2.02. Execution and Authentication.
(a) Two Officers of the Company shall sign the Notes for the Company
by manual or facsimile signature.
(b) The Trustee shall, upon a written order of the Company signed by
two Officers of the Company (an "Authentication Order") delivered to the Trustee
from time to time, authenticate and deliver Notes for original issue without
limit as to the aggregate principal amount thereof, subject to compliance with
Section 4.07, of which $175 million will be issued on the date of this
Indenture.
(c) Upon receipt of an Authentication Order, the Trustee shall
authenticate for original issue (i) Exchange Notes in exchange for Initial Notes
in an aggregate principal amount not to exceed $175 million on the date hereof
and in the aggregate principal amount of the Notes issued in accordance with
this Indenture after the date hereof or (ii) Exchange Notes in exchange for
Additional Notes; provided that such Exchange Notes shall be issuable only upon
the valid surrender for cancellation of Initial Notes issued on the date hereof
or Additional Notes, as the case may be, of a like aggregate principal amount in
accordance with an Exchange Offer pursuant to an applicable Registration Rights
Agreement.
(d) If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(e) A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
(f) The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is unlimited.
(g) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03. Methods of Receiving Payments on the Notes.
If a Holder of Notes has given wire transfer instructions to the
Company at least 10 Business Days before payment is due, the Company shall pay
all principal, interest and premium, if any, on that Holder's Notes in
accordance with those instructions. All other payments on Notes shall be made at
the office or agency of the Paying Agent and Registrar unless the Company elects
to make interest payments by check mailed to the Holders at their addresses set
forth in the register of Holders. Payments of interest to the Trustee as Paying
Agent, if the Trustee then acts as Paying Agent, with respect to any Interest
Payment Date (as defined in the Notes) shall be made by the Company in
immediately available funds for receipt by the Trustee no later than 10:00 a.m.
Eastern Time on such Interest Payment Date.
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Section 2.04. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without prior notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints DTC to act as Depositary with
respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment of
principal or premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or one of its Subsidiaries) shall have
no further liability for the money. If the Company or any of its Subsidiaries
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
Section 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least 15
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.07. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes shall be exchanged
by the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
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Company within 90 days after the date of such notice from the Depositary; (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee; provided that in no event shall the
Regulation S Temporary Global Note be exchanged by the Company for Definitive
Notes prior to (x) the expiration of the Restricted Period and (y) the receipt
by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B)
under the Securities Act; or (iii) there shall have occurred and be continuing a
Default or Event of Default with respect to the Notes. Upon the occurrence of
any of the preceding events in (i), (ii) or (iii) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.08 and 2.11 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.07 or Section 2.08 or 2.11 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.07(a);
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.07(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend and
any Applicable Procedures; provided, however, that prior to the
expiration of the Restricted Period, transfers of beneficial interests
in the Regulation S Temporary Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than a
"distributor" (as defined in Rule 902(d) of Regulation S)). Beneficial
interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note. Except as may be required by any
Applicable Procedures, no written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.07(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.07(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be
credited with such increase or (B) (1) if permitted under Section
2.07(a) hereof, a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name
such Definitive
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Note shall be registered to effect the transfer or exchange referred
to in (1) above; provided that in no event shall Definitive Notes be
issued upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act. Upon consummation of an Exchange Offer by the Company
in accordance with Section 2.07(f) hereof, the requirements of this
Section 2.07(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter
of Transmittal delivered by the Holder of such beneficial interests in
the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount at maturity of the relevant Global Notes pursuant to
Section 2.07(i) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.07(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof or, if permitted
by the Applicable Procedures, item (3) thereof;
(B) if the transferee shall take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as the case may be, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof;
(C) if the transferee is required by the Applicable
Procedures to take delivery in the form of a beneficial interest
in the IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required
by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any Holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.07(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with an applicable Registration
Rights Agreement and the holder of the beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications required in the
applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
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(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with an applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
an Exchange Offer Registration Statement in accordance with an
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(a)
thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in clause (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to clause (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in an
Unrestricted Global Note for Beneficial Interests in a Restricted
Global Note Prohibited. Beneficial interests in an Unrestricted Global
Note cannot be exchanged for, or transferred to Persons who take
delivery thereof in the form of, a beneficial interest in a Restricted
Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. Subject to Section 2.07(a) hereof, if any Holder of
a beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive
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Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction (as defined in Section
902(h) of Regulation S) in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.07(i) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.07(c)(i) shall be registered in
such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section
2.07(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note
to Definitive Notes. Notwithstanding Sections 2.07(c)(i)(A) and (C)
hereof, a beneficial interest in the Regulation S Temporary Global
Note may not be exchanged for a Definitive Note or transferred to a
Person who takes delivery thereof in the form of a Definitive Note
prior
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to (x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. Subject to Section 2.07(a) hereof, a
Holder of a beneficial interest in a Restricted Global Note may
exchange such beneficial interest for an Unrestricted Definitive Note
or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with an applicable Registration
Rights Agreement and the holder of the beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications required in the
applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with an applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
an Exchange Offer Registration Statement in accordance with an
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the
Private Placement Legend, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of any of the conditions of any of the
clauses of this Section 2.07(c)(iii), the Company shall execute and,
upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate and deliver a Definitive
Note that does not bear the Private Placement Legend in the
appropriate
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principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on
behalf of such holder, and the Trustee shall reduce or cause to be
reduced in a corresponding amount pursuant to Section 2.07(i), the
aggregate principal amount of the applicable Restricted Global Note.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any Holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.07(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.07(i) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall be registered in
such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction (as defined in
Rule 902(k) of Regulation S) in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
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(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the
case of clause (B) above, the 144A Global Note, and in the case of
clause (C) above, the Regulation S Global Note and in all other cases
the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with an applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, makes any and all
certifications required in the applicable Letter of Transmittal
(or is deemed to have made such certifications if delivery is
made through the Applicable Procedures) as may be required by
such Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with an applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
an Exchange Offer Registration Statement in accordance with an
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications
in item (1)(c) thereof; or
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(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this clause (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of any of the conditions of any of the clauses
of this Section 2.07(d)(ii), the Trustee shall cancel the Definitive
Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased in
a corresponding amount the aggregate principal amount of one of the
Unrestricted Global Notes pursuant to Section 2.07(i) hereof;
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. An
Unrestricted Definitive Note may not be exchanged for, or transferred
to Persons who take delivery thereof in the form of, beneficial
interests in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such exchange
or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at
a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal amount
equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.07(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.07(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in
the name of Persons
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who take delivery thereof in the form of a Restricted Definitive Note
if the Registrar receives the following:
(A) if the transfer shall be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer shall be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transfer shall be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with an applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, makes any and all
certifications required in the applicable Letter of Transmittal
(or is deemed to have made such certifications if delivery is
made through the Applicable Procedures) as may be required by
such Registration Rights Agreement;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with an applicable
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with an applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect
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that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of
this Section 2.07(e)(ii), the Trustee shall cancel the prior
Restricted Definitive Note and the Company shall execute, and upon
receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver an Unrestricted
Definitive Note in the appropriate aggregate principal amount to the
Person designated by the Holder of such prior Restricted Definitive
Note in instructions delivered to the Registrar by such Holder.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with an applicable Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate (A) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of the beneficial interests in the applicable Restricted Global Notes (1)
tendered for acceptance by Persons that make any and all certifications in the
applicable Letters of Transmittal (or are deemed to have made such
certifications if delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement and (2) accepted for exchange in
such Exchange Offer and (B) Unrestricted Definitive Notes in an aggregate
principal amount equal to the aggregate principal amount of the Restricted
Definitive Notes tendered for acceptance by Persons who made the foregoing
certifications and accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Notes, the Trustee shall reduce or cause to be reduced
in a corresponding amount the aggregate principal amount of the applicable
Restricted Global Notes, and the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Restricted
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate
aggregate principal amount. Any Notes that remain outstanding after the
consummation of an Exchange Offer, and Exchange Notes issued in connection with
an Exchange Offer, shall be treated as a single class of securities under this
Indenture.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend. Except as permitted below, each
Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE,
THE GUARANTEES ENDORSED HEREON, NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN
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THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF
THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE "RESALE RESTRICTION
TERMINATION DATE"), EXCEPT THAT THE NOTES AND GUARANTEES MAY BE
TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF
THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR
TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES,
TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.07 (and all Notes
issued in exchange therefor or substitution thereof) (and any note not
required by law to have such a legend), shall not bear the Private
Placement Legend.
In addition, the foregoing legend may be adjusted for future
issuances in accordance with applicable law.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
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THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
(h) Regulation S Temporary Global Note Legend. The Regulation S
Temporary Global Note shall bear a legend in substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
(i) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.12 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who shall take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(j) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.11, 3.06, 4.11, 4.20 and
9.05 hereof).
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(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid and legally binding obligations of the
Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof and ending at the close
of business on the day of selection, (B) to register the transfer of
or to exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part
or (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section
2.07 to effect a registration of transfer or exchange may be submitted
by facsimile with the original to follow by first class mail or
delivery service.
Section 2.08. Replacement Notes.
(a) If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to their satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for their expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.09. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
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Section as not outstanding. Except as set forth in Section 2.10 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
(b) If a Note is replaced pursuant to Section 2.08 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
(c) If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary of the
Company or an Affiliate of any of the foregoing) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary Notes.
(a) Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Definitive Notes in exchange for temporary Notes.
(b) Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). Certification of the disposition of
all canceled Notes shall be delivered to the Company upon request. The Company
may not issue new Notes to replace Notes that they have paid or that have been
delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the
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Persons who are Holders on the record date for the interest payment or a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.14. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the "CUSIP" numbers.
Section 2.15. Additional Interest.
If Additional Interest is payable by the Company pursuant to an
applicable Registration Rights Agreement and paragraph 1 of the Notes, no later
than 15 days prior to the proposed payment date for such Additional Interest,
the Company shall deliver to the Trustee a certificate to that effect stating
(i) the amount of such Additional Interest that is payable and (ii) the date on
which such interest is payable pursuant to Section 4.01 hereof. If the Company
has paid Additional Interest directly to the Persons entitled to it, the Company
shall deliver to the Trustee an Officers' Certificate setting forth the details
of such payment.
Section 2.16. Issuance of Additional Notes.
(a) The Company shall be entitled, subject to its compliance with
Article Four hereof, to issue Additional Notes under this Indenture.
(b) With respect to any Additional Notes, the Company shall set forth
in a Board Resolution and an Officers' Certificate, a copy of each of which
shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP and/or ISIN number
of such Additional Notes; and
(3) whether such Additional Notes shall be subject to the restrictions
on transfer set forth in Section 2.07 hereof relating to Restricted Global
Notes and Restricted Definitive Notes.
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ARTICLE THREE
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
(a) If less than all of the Notes are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes not more than 60 days prior
to the redemption date, or otherwise in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Trustee considers fair and appropriate. In the event
of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount at maturity thereof to be redeemed. No Notes in
amounts of $1,000 or less shall be redeemed in part. The Trustee may select for
redemption portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of Notes selected shall be in amounts of $1,000
or whole multiples of $1,000 in excess thereof; except that if all of the Notes
of a Holder are to be redeemed, the entire outstanding amount of Notes held by
such Holder, even if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption. Redemptions pursuant to Section 3.07(b) hereof shall be made on a
pro rata basis or on as nearly a pro rata basis as practicable (subject to the
provisions of DTC or other depositary).
Section 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption
date, the Company shall deliver a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address and deliver a copy to the
Trustee at the same time.
The notice shall identify the Notes (including CUSIP number(s)) to be
redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the portion of the
principal amount at maturity of such Note to be redeemed and that, after
the redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion of the original Note shall
be issued in the name of the Holder thereof upon cancellation of the
original Note;
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(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price and become due on the date fixed for
redemption;
(vi) that, unless the Company defaults in making such redemption
payment, interest, if any, on Notes called for redemption ceases to accrue
on and after the redemption date;
(vii) the paragraph of the Notes and/or section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
(b) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date (unless the Trustee shall have agreed to a shorter period), an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph. The notice, if delivered in the manner provided herein shall be
presumed to have been given, whether or not the Holder receives such notice.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is delivered in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional other than in the case of a Change of Control Offer pursuant to
Section 4.20 hereof.
Section 3.05. Deposit of Redemption Price.
(a) One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
(b) If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Holder
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal
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amount to the unredeemed portion of the Note surrendered. No Notes in
denominations of $1,000 or less shall be redeemed in part.
Section 3.07. Optional Redemption.
(a) On or after February 15, 2011, the Company may redeem all or a
portion of the Notes, on not less than 30 nor more than 60 days' prior written
notice, in amounts of $1,000 or whole multiples of $1,000 in excess thereof at
the following redemption prices (expressed as percentages of the principal
amount), set forth below plus accrued and unpaid interest, if any, thereon, to
the applicable redemption date (subject to the rights of holders of record on
relevant record dates to receive interest due on an interest payment date), if
redeemed during the twelve-month period beginning on February 15 of the years
indicated below:
YEAR REDEMPTION PRICE
- ---- ----------------
2011................... 104.875%
2012................... 102.438%
2013 and thereafter.... 100.000%
(b) In addition, at any time and from time to time prior to February
15, 2010, the Company may use the net proceeds of one or more Equity Offerings
to redeem up to an aggregate of 35% of the aggregate principal amount of Notes
issued under this Indenture (including the principal amount of any Additional
Notes issued under this Indenture) at a redemption price equal to 109.750% of
the aggregate principal amount of the Notes redeemed, plus accrued and unpaid
interest, if any, to the redemption date (subject to the rights of holders of
record on relevant record dates to receive interest due on an interest payment
date); provided that this redemption provision shall not be applicable with
respect to any transaction that results in a Change of Control. At least 65% of
the aggregate principal amount of Notes (including the principal amount of any
Additional Notes issued under this Indenture) must remain outstanding
immediately after the occurrence of such redemption. In order to effect this
redemption, the Company must deliver a notice of redemption no later than 30
days after the closing of the related Public Equity Offering and must complete
such redemption within 60 days of the closing of the Public Equity Offering.
(c) At any time prior to February 15, 2011, the Company also may
redeem all or part of the Notes, upon not less than 30 nor more than 60 days'
written notice, at a redemption price equal to 100% of the principal amount of
the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Additional Interest, if any, to the redemption date, subject to the
rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date.
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
Section 3.09. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 3.05 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either
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directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes.
(a) The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or one of its Subsidiaries, holds as of 10:00 a.m. New York Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest on the Notes
then due. If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day, and no interest shall accrue on such
payment for the intervening period. The Company shall pay Additional Interest,
if any, on the dates of its choosing in the amounts and in the manner set forth
in the Registration Rights Agreement.
(b) The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal in the manner
provided in the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the
same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain an office or agency (which may be an
office of the Trustee or an agent of the Trustee, Registrar or co-Registrar)
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.04 of this Indenture.
Section 4.03. Reports.
(a) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
Commission, the Indenture will require the Company to file with the Commission
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(and make available to the Trustee and Holders of the Notes (without exhibits),
without cost to any Holder, within 15 days after it files them with the
Commission) from and after the Issue Date,
(1) within the time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-K
after the end of each fiscal year, annual reports on Form 10-K, or any
successor or comparable form, containing the information required to be
contained therein, or required in such successor or comparable form;
(2) within the time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-Q
after the end of each of the first three fiscal quarters of each fiscal
year, reports on Form 10-Q containing all quarterly information that would
be required to be contained in Form 10-Q, or any successor or comparable
form;
(3) within the time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 8-K
after the occurrence of an event required to be therein reported, such
other reports on Form 8-K, or any successor or comparable form; and
(4) any other information, documents and other reports which the
Company would be required to file with the Commission if it were subject to
Section 13 or 15(d) of the Exchange Act;
in each case, in a manner that complies in all material respects with the
requirements specified in such form; provided that the Company shall not be so
obligated to file such reports with the Commission if the Commission does not
permit such filing, in which event the Company will make available such
information to prospective purchasers of Notes, in addition to providing such
information to the Trustee and the Holders of the Notes, in each case within 15
days after the time the Company would be required to file such information with
the Commission, if it were subject to Section 13 or 15(d) of the Exchange Act.
In addition, to the extent not satisfied by the foregoing, the Company will
agree that, for so long as any Notes are outstanding, it will furnish to Holders
and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(b) The Company shall hold a quarterly conference call for the Holders
of the Notes to discuss the Company's operating results within five Business
Days from the date that the Company would otherwise be required to file reports
as set forth above.
(c) Notwithstanding anything herein to the contrary, the Company will
not be deemed to have failed to comply with any of its obligations hereunder for
purposes of clause (4) of Section 6.01 hereof until 15 days after the date any
report hereunder is due.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Company
has kept, observed, performed and fulfilled its obligations under this Indenture
and is not in default in the performance or observance of any of the material
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred and be continuing, describing all such Defaults or
Events of Default of which he or she may have knowledge and
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what action the Company is taking or propose to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, or interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto. To the extent required under the TIA,
each Guarantor shall also deliver to the Trustee an Officers' Certificate
meeting the requirements of this paragraph (a) with respect to such Guarantor.
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, on or before the fifth Business Day after becoming aware
of the occurrence of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of their respective
Subsidiaries to pay, prior to delinquency, any material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenant (to the extent that
they may lawfully do so) that they shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that they may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant
that they shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.07. Incurrence of Indebtedness and Issuance of Disqualified Stock.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise
in any manner become directly or indirectly liable for the payment of or
otherwise incur, contingently or otherwise (collectively, "incur"), any
Indebtedness (including any Acquired Debt and the issuance of Disqualified
Stock), unless such Indebtedness is incurred by the Company or any Guarantor
and, in each case, the Company's Consolidated Interest Coverage Ratio for the
most recent four full fiscal quarters for which financial statements are
available immediately preceding the incurrence of such Indebtedness taken as one
period is at least equal to or greater than 2.0:1.
(b) Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Restricted Subsidiaries may incur each and all
of the following (collectively, the "Permitted Debt"):
(1) Indebtedness of the Company and of any Restricted Subsidiary under
a Credit Facility in an aggregate principal amount at any one time
outstanding not to exceed $400 million, which amount shall be permanently
reduced by the amount of Net Available Cash from Asset Sales applied by the
Company or any Restricted Subsidiary thereof to permanently repay any such
Indebtedness; provided that no more than $100 million of the borrowings
under such Credit Facility can be directly borrowed or guaranteed by
Subsidiaries that are not Guarantors;
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(2) Indebtedness of the Company or any Guarantor pursuant to the Notes
(excluding any Additional Notes) and any Guarantee of the Notes and any
notes (including Guarantees thereof) issued in exchange for the Notes
pursuant to the Registration Rights Agreement;
(3) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the date of this Indenture, and not otherwise referred to in
this definition of "Permitted Debt;"
(4) Indebtedness of the Company or any Guarantor pursuant to the
Convertible Senior Subordinated Debentures outstanding on the date of the
Issue Date, and any amount of Indebtedness issued pursuant to an
over-allotment option with respect to the Convertible Senior Subordinated
Debentures;
(5) intercompany Indebtedness between or among the Company and any of
its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such
Indebtedness and the obligee is a Foreign Subsidiary, such
Indebtedness must be subordinated to the prior payment in full in cash
of all Obligations with respect to the Notes, in the case of the
Company, or the Guarantee, in the case of a Guarantor, pursuant to an
intercompany note in the form of Exhibit G hereto or pursuant to
another agreement containing substantially the same subordination
provisions as those contained in Section 2.01 of Exhibit G hereto; and
(b) (i) any subsequent issuance or transfer of Capital Stock that
results in any such Indebtedness being held by a Person other than the
Company or a Restricted Subsidiary thereof (other than pursuant to a
pledge under a Credit Facility pursuant to a Permitted Lien) and (ii)
any sale or other transfer of any such Indebtedness to a Person that
is not either the Company or a Restricted Subsidiary thereof, shall be
deemed, in each case, to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case may be, that
was not permitted by this clause (5);
(6) guarantees of any Guarantor of Indebtedness of the Company or any
of the Guarantors which is permitted to be incurred under this Indenture;
(7) (a) obligations pursuant to Interest Rate Agreements, but only to
the extent such obligations do not exceed the aggregate principal amount of
the Indebtedness covered by such Interest Rate Agreements; (b) obligations
under currency exchange contracts entered into in the ordinary course of
business; (c) obligations pursuant to hedging arrangements (including,
without limitation, swaps, caps, floors, collars, options and similar
agreements) entered into in the ordinary course of business and not for
speculative purposes; and (d) any guarantee of any of the foregoing;
(8) Indebtedness of the Company or any Restricted Subsidiary
represented by Capital Lease Obligations (whether or not incurred pursuant
to sale and leaseback transactions) or Purchase Money Obligations in an
aggregate principal amount pursuant to this clause (8) not to exceed $30.0
million outstanding at any time; provided that the principal amount of any
Indebtedness permitted under this clause (8) did not in each case at the
time of incurrence exceed the Fair Market Value, as determined by the
Company in good faith, of the acquired or constructed asset or improvement
so financed;
(9) Indebtedness of the Company or any Restricted Subsidiary in
connection with (a) one or more standby letters of credit issued by the
Company or a Restricted Subsidiary in the
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ordinary course of business consistent with past practice and (b) other
letters of credit, surety, performance, appeal or similar bonds, bankers'
acceptances, completion guarantees or similar instruments pursuant to
self-insurance and workers' compensation obligations; provided that, in
each case contemplated by this clause (9), upon the drawing of such letters
of credit or other instrument, such obligations are reimbursed within 30
days following such drawing and which obligations may be reimbursed through
borrowings of Indebtedness permitted pursuant to this Section 4.07;
provided, further, that with respect to clauses (a) and (b), such
Indebtedness is not in connection with the borrowing of money or the
obtaining of advances or credit;
(10) Indebtedness of the Company to the extent the net proceeds
thereof are promptly deposited to defease or satisfy the Notes pursuant to
Article Eight or Article Eleven;
(11) Indebtedness of the Company or any Restricted Subsidiary arising
from agreements for indemnification or purchase price adjustment
obligations or similar obligations, earn-outs or other similar obligations
or from guarantees or letters of credit, surety bonds or performance bonds
securing any obligation of the Company or a Restricted Subsidiary pursuant
to such an agreement, 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 the maximum assumable liability in
respect of all such obligations shall at no time exceed the gross proceeds
actually paid or received by the Company and any Restricted Subsidiary,
including the Fair Market Value of non-cash proceeds;
(12) Permitted Refinancing Indebtedness of the Company or any
Guarantor issued in exchange for, or the net proceeds of which are used to
renew, extend, substitute, refund, refinance or replace, any Indebtedness,
including any Disqualified Stock, incurred pursuant to paragraph (a) of
this Section 4.07 and clauses (2) and (3) of this paragraph (b) of this
definition of "Permitted Debt;" and
(13) Indebtedness owed to third party financing companies in the form
of limited recourse obligations that finance receivables of customers of
the Company or any Restricted Subsidiary in the ordinary course of
business; provided that such Indebtedness is limited in an amount not in
excess of 75% of such obligations in the aggregate of the total owed by
customers of the Company or any Restricted Subsidiary to such third party
financing companies;
(14) Indebtedness with respect to Standard Receivables Undertakings;
(15) Indebtedness incurred by a Foreign Subsidiary, which may but is
not required to be incurred under the Senior Credit Facilities, which, when
aggregated with the principal amount of all other Indebtedness incurred
pursuant to this clause (15) and then outstanding, does not exceed 25% of
Consolidated Assets of the Foreign Subsidiaries; provided that at the time
of the incurrence of any such Indebtedness the Company's Consolidated
Interest Coverage Ratio for the most recent four full fiscal quarters for
which financial statements are available immediately preceding the
incurrence of such Indebtedness taken as one period is at least equal to or
greater than 2.0:1; and
(16) Indebtedness of the Company or any Restricted Subsidiary in
addition to that described in clauses (1) through (15) above, and any
renewals, extensions, substitutions, refinancings or replacements of such
Indebtedness, so long as the aggregate principal amount of all such
Indebtedness shall not exceed $35.0 million outstanding at any one time in
the aggregate.
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(c) For purposes of determining compliance with this Section 4.07, in
the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness permitted by this Section 4.07, the Company in its
sole discretion shall classify or reclassify such item of Indebtedness and only
be required to include the amount of such Indebtedness as one of such types;
provided that Indebtedness under the Senior Credit Facilities which is in
existence following the Issue Date, and any renewals, extensions, substitutions,
refundings, refinancings or replacements thereof, in an amount not in excess of
the amount permitted to be incurred pursuant to clause (1) of paragraph (b)
above, shall be deemed to have been incurred pursuant to clause (1) of paragraph
(b) above rather than paragraph (a) above.
(d) Indebtedness permitted by this Section 4.07 need not be permitted
solely by reference to one provision permitting such Indebtedness but may be
permitted in part by one such provision and in part by one or more other
provisions of this Section 4.07 permitting such Indebtedness.
(e) Accrual of interest, accretion or amortization of original issue
discount and the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the accretion or payment of
dividends on any Disqualified Stock or Preferred Stock in the form of additional
shares of the same class of Disqualified Stock or Preferred Stock shall not be
deemed to be an incurrence of Indebtedness for purposes of this Section 4.07;
provided, in each such case, that the amount thereof as accrued shall be
included in the calculation of the Consolidated Interest Coverage Ratio of the
Company.
(f) For purposes of determining compliance of any non-U.S.
dollar-denominated Indebtedness with this Section 4.07, the amount outstanding
under any U.S. dollar-equivalent principal amount of Indebtedness denominated in
a foreign currency shall at all times be calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was incurred, in
the case of the term Indebtedness, or first committed, in the cases of the
revolving credit Indebtedness, provided, however, that if such Indebtedness is
incurred to refinance other Indebtedness denominated in the same or different
currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated 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.
(g) If Indebtedness is secured by a letter of credit that serves only
to secure such Indebtedness, then the total amount deemed incurred shall be
equal to the greater of (x) the principal of such Indebtedness and (y) the
amount that may be drawn under such letter of credit.
(h) The amount of Indebtedness issued at a price less than the amount
of the liability thereof shall be determined in accordance with GAAP.
Section 4.08. Restricted Payments.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly:
(1) pay any dividend on, or make any distribution to holders of, any
shares of the Company's Capital Stock (other than dividends or
distributions payable solely in shares of the Company's Qualified Capital
Stock or in options, warrants or other rights to acquire shares of such
Qualified Capital Stock);
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(2) purchase, redeem, defease or otherwise acquire or retire for
value, directly or indirectly, the Company's Capital Stock or options,
warrants or other rights to acquire such Capital Stock;
(3) make any principal payment on, or repurchase, redeem, defease,
retire or otherwise acquire for value or make any consent payment in
connection with any amendment of, prior to any scheduled principal payment,
sinking fund payment or maturity, any Subordinated Indebtedness, except a
purchase, repurchase, redemption, defeasance or retirement within one year
of final maturity thereof;
(4) pay any dividend or distribution on any Capital Stock of any
Restricted Subsidiary to any Person (other than (a) to the Company or any
of its Wholly Owned Restricted Subsidiaries or (b) dividends or
distributions made by a Restricted Subsidiary on a pro rata basis to all
stockholders of such Restricted Subsidiary); or
(5) make any Investment in any Person (other than any Permitted
Investments);
(any of the foregoing actions described in clauses (1) through (5) above, other
than any such action that is a Permitted Payment (as defined below),
collectively, "Restricted Payments") (the amount of any such Restricted Payment,
if other than cash, shall be the Fair Market Value of the assets proposed to be
transferred as determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), unless
(1) immediately before and immediately after giving effect to such
proposed Restricted Payment on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing and such Restricted Payment
shall not be an event which is, or after notice or lapse of time or both,
would be, an "event of default" under the terms of any Indebtedness of the
Company or its Restricted Subsidiaries;
(2) immediately before and immediately after giving effect to such
Restricted Payment on a pro forma basis, the Company could incur $1.00 of
additional Indebtedness (i.e., the Company's Consolidated Interest Coverage
Ratio for the most recent four full fiscal quarters for which financial
statements are available immediately preceding the incurrence of such
Indebtedness taken as one period is at least equal to or greater than
2.0:1) (other than Permitted Debt) under paragraph (a) of Section 4.07
hereof; and
(3) after giving effect to the proposed Restricted Payment, the
aggregate amount of all such Restricted Payments declared or made after the
date of this Indenture and all Designation Amounts does not exceed the sum
of:
(A) 50% of the aggregate Consolidated Net Income of the Company
accrued on a cumulative basis during the period beginning on the first
day of the Company's fiscal quarter beginning after the date of this
Indenture and ending on the last day of the Company's last fiscal
quarter ending prior to the date of the Restricted Payment (or, if
such aggregate cumulative Consolidated Net Income shall be a loss,
minus 100% of such loss);
(B) the aggregate Net Cash Proceeds, or the Fair Market Value of
property other than cash, received after the date of this Indenture by
the Company either (1) as capital contributions in the form of common
equity to the Company or (2) from the issuance or sale (other than to
any of its Subsidiaries) of Qualified Capital Stock of the
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Company or any options, warrants or rights to purchase such Qualified
Capital Stock of the Company (except, in each case, to the extent such
proceeds are used to purchase, redeem or otherwise retire Capital
Stock or Subordinated Indebtedness as set forth below in clause (2) or
(3) of paragraph (b) below) (and excluding the Net Cash Proceeds from
the issuance of Qualified Capital Stock financed, directly or
indirectly, using funds borrowed from the Company or any Subsidiary
until and to the extent such borrowing is repaid);
(C) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company (other than from any of its
Subsidiaries) upon the exercise of any options, warrants or rights to
purchase Qualified Capital Stock of the Company (and excluding the Net
Cash Proceeds from the exercise of any options, warrants or rights to
purchase Qualified Capital Stock financed, directly or indirectly,
using funds borrowed from the Company or any Subsidiary until and to
the extent such borrowing is repaid);
(D) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company from the conversion or exchange, if any,
of debt securities or Disqualified Stock of the Company or its
Restricted Subsidiaries into or for Qualified Capital Stock of the
Company plus, to the extent such debt securities or Disqualified Stock
were issued after the date of this Indenture other than pursuant to
the over-allotment option for the Convertible Senior Subordinated
Debentures, the aggregate of Net Cash Proceeds from their original
issuance (and excluding the Net Cash Proceeds from the conversion or
exchange of debt securities or Disqualified Stock financed, directly
or indirectly, using funds borrowed from the Company or any Subsidiary
until and to the extent such borrowing is repaid);
(E) (a) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment (including any Investment
in an Unrestricted Subsidiary) made after the date of this Indenture,
an amount (to the extent not included in Consolidated Net Income)
equal to the lesser of the return of capital with respect to such
Investment and the initial amount of such Investment, in either case,
less the cost of the disposition of such Investment and net of taxes,
and
(b) in the case of the designation of an Unrestricted
Subsidiary as a Restricted Subsidiary (as long as the designation
of such Subsidiary as an Unrestricted Subsidiary was deemed a
Restricted Payment), the Fair Market Value of the Company's
interest in such Subsidiary; provided that such amount shall not
in any case exceed the amount of the Restricted Payment deemed
made at the time the Subsidiary was designated as an Unrestricted
Subsidiary; and
(F) any amount which previously qualified as a Restricted Payment
on account of any guarantee entered into by the Company or any
Restricted Subsidiary; provided that such guarantee has not been
called upon and the obligation arising under such guarantee no longer
exists.
(b) Notwithstanding the foregoing, and in the case of clauses (2)
through (11) below, so long as no Default or Event of Default is continuing or
would arise therefrom, the foregoing provisions shall not prohibit the following
actions (each of clauses (1) through (5) and clauses (9) through (11) being
referred to as a "Permitted Payment"):
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(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment was
permitted by the provisions of paragraph (a) of this Section 4.08 and such
payment shall have been deemed to have been paid on such date of
declaration and shall not have been deemed a "Permitted Payment" for
purposes of the calculation required by paragraph (a) of this Section 4.08;
(2) the purchase, repurchase, redemption, or other acquisition or
retirement for value of any shares of any class of Capital Stock of the
Company in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which cash
is paid in lieu of the issuance of fractional shares or scrip), or out of
the Net Cash Proceeds of a substantially concurrent issuance and sale for
cash (other than to a Subsidiary) of, other shares of Qualified Capital
Stock of the Company; provided that the Net Cash Proceeds from the issuance
of such shares of Qualified Capital Stock shall be excluded from clause
(3)(B) of paragraph (a) of this Section 4.08;
(3) the purchase, repurchase, redemption, defeasance, satisfaction and
discharge, retirement or other acquisition for value or payment of
principal of any Subordinated Indebtedness in exchange for, or in an amount
not in excess of the Net Cash Proceeds of, a substantially concurrent
issuance and sale for cash (other than to any Subsidiary of the Company) of
any Qualified Capital Stock of the Company, provided that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock shall
be excluded from clause (3)(B) of paragraph (a) of this Section 4.08;
(4) the purchase, repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any
Subordinated Indebtedness (other than Disqualified Stock) through the
substantially concurrent issuance of Permitted Refinancing Indebtedness;
(5) the repurchase, redemption, retirement or other acquisition for
value of any Capital Stock of the Company held by any current or former
officers, directors or employees of the Company or any of its Subsidiaries
(or permitted transferees of such current or former officers, directors or
employees) pursuant to the terms of agreements (including employment
agreements) or plans approved by the Company's Board of Directors or any
Committee thereof, including any such repurchase, redemption, acquisition
or retirement of shares of such Capital Stock that is deemed to occur upon
the exercise of stock options restricted shares or similar rights if such
shares represent all or a portion of the exercise price or are surrendered
in connection with satisfying federal income tax obligations; provided,
however, that the aggregate amount of such repurchases, redemptions,
retirements and acquisitions pursuant to this clause (5) (other than of
shares of such Capital Stock that are deemed to occur upon the exercise of
stock options, restricted shares or similar rights if such shares represent
all or a portion of the exercise price or are surrendered in connection
with satisfying federal income tax obligations) will not, in the aggregate,
exceed $2.5 million per fiscal year (with unused amounts in any fiscal year
being carried over to succeeding fiscal years subject to a maximum of $5.0
million in any fiscal year);
(6) loans made to officers, directors or employees of the Company or
any Restricted Subsidiary approved by the Board of Directors in an
aggregate amount not to exceed $2.5 million outstanding at any one time,
the proceeds of which are used solely (A) to purchase common stock of the
Company in connection with a restricted stock or employee stock purchase
plan, or to exercise stock options received pursuant to an employee or
director stock option plan or other incentive plan, in a principal amount
not to exceed the exercise price of such stock options or (B)
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to refinance loans, together with accrued interest thereon, made pursuant
to item (A) of this clause (6);
(7) so long as no payment Default or Event of Default has occurred and
is continuing or would result thereby, the payment of cash dividends on the
Company's shares of common stock in the aggregate amount per fiscal quarter
not to exceed $0.0125 per share for each share of common stock of the
Company outstanding as of the one record date for dividends payable in
respect of such fiscal quarter (as such amount shall be appropriately
adjusted for any stock splits, stock dividends, reverse stock splits, stock
consolidations and similar transactions);
(8) the repurchase, redemption or other acquisition or retirement for
value of any Convertible Senior Subordinated Debentures upon a "fundamental
change" as defined in the Convertible Senior Subordinated Debenture
Indenture; provided that all Notes tendered by holders of the Notes in
connection with a Change of Control Offer or Prepayment Offer in connection
with an Asset Sale, as applicable, have been repurchased, redeemed or
acquired for value;
(9) cash payments made in respect of the Convertible Senior
Subordinated Debentures upon conversion in an amount not to exceed $10.0
million dollars during the term of the Notes plus any amount repaid with or
exchanged or converted for Capital Stock;
(10) Investments in a Receivables Subsidiary made in connection with a
Qualified Receivables Transaction; and
(11) Restricted Payments not exceeding $10.0 million in the aggregate.
Section 4.09. Transactions with Affiliates.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with or for the
benefit of any Affiliate of the Company (other than the Company or a Restricted
Subsidiary) unless such transaction or series of related transactions is entered
into in good faith and in writing and
(1) such transaction or series of related transactions is on terms
that are no less favorable to the Company or such Restricted Subsidiary, as
the case may be, than those that would be available in a comparable
transaction in arm's-length dealings with a party who is not an Affiliate
of the Company,
(2) with respect to any transaction or series of related transactions
involving an aggregate value in excess of $10.0 million or, for a
multi-year transaction, involving an aggregate value in excess of $2.0
million per fiscal year,
(A) the Company delivers an Officers' Certificate to the Trustee
certifying that such transaction or series of related transactions
complies with clause (1) above, and
(B) such transaction or series of related transactions has been
approved by a majority of the Disinterested Directors of the Board of
Directors of the Company, or in the event there is only one
Disinterested Director, by such Disinterested Director, or
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(3) with respect to any transaction or series of related transactions
involving an aggregate value in excess of $25.0 million or, for a
multi-year transaction, involving an aggregate value in excess of $5.0
million per fiscal year, the Company delivers to the Trustee a written
opinion of an investment banking firm of national standing or other
recognized independent expert with experience appraising the terms and
conditions of the type of transaction or series of related transactions for
which an opinion is required stating that the transaction or series of
related transactions is fair to the Company or such Restricted Subsidiary
from a financial point of view;
(b) However, paragraph (a) above shall not apply to:
(1) employee benefit arrangements with any officer or director of the
Company, including under any employment agreement, stock option or stock
incentive plans, and customary indemnification arrangements with officers
or directors of the Company, in each case entered into in the ordinary
course of business,
(2) the payment of reasonable and customary fees to directors of the
Company or any of its Restricted Subsidiaries who are not employees of the
Company or any Affiliate,
(3) loans or advances to officers, directors and employees of the
Company or any Restricted Subsidiary made in the ordinary course of
business in an aggregate amount not to exceed $2.5 million outstanding at
any one time,
(4) any Restricted Payments made in compliance with Section 4.08
hereof,
(5) any transactions undertaken pursuant to any contracts in existence
on the Issue Date (as in effect on the Issue Date) and any renewals,
replacements or modifications of such contracts (pursuant to new
transactions or otherwise) on terms no less favorable to the Holders of the
Notes than those in effect on the Issue Date,
(6) any transaction with a Receivables Subsidiary effected as part of
a Qualified Receivables Transaction on terms at least as favorable as would
reasonably have been entered into at such time with an unaffiliated party,
and
(7) the issuance of Equity Interests (other than Disqualified Stock)
of the Company to any Affiliate of the Company.
Section 4.10. Liens.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, create, incur or affirm any
Lien of any kind, other than Permitted Liens, upon any property or assets
(including any intercompany notes) of the Company or any Restricted Subsidiary
owned on the date of this Indenture or acquired after the date of this
Indenture, or assign or convey, any right to receive any income or profits
therefrom, unless (and until such Liens remain outstanding) the Notes (or a
Guarantee in the case of Liens of a Guarantor) are directly secured equally and
ratably with (or, in the case of Subordinated Indebtedness, prior or senior
thereto, with the same relative priority as the Notes shall have with respect to
such Subordinated Indebtedness) the obligation or liability secured by such
Lien.
(b) Notwithstanding the foregoing, any Lien securing the Notes or a
Guarantee granted pursuant to paragraph (a) above shall be automatically and
unconditionally released and
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discharged upon: (i) any sale, exchange or transfer to any Person not an
Affiliate of the Company of the property or assets secured by such Lien, (ii)
any sale, exchange or transfer to any Person not an Affiliate of the Company of
all of the Capital Stock held by the Company or any Restricted Subsidiary in, or
all or substantially all the assets of, any Restricted Subsidiary creating such
Lien, or (iii) with respect to any Lien securing a Guarantee, the release of
such Guarantee in accordance with this Indenture.
Section 4.11. Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, consummate any Asset Sale unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value of the assets and
property subject to such Asset Sale and (ii) 75% of the consideration paid to
the Company or such Restricted Subsidiary in connection with such Asset Sale is
in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties
(including pursuant to asset swaps) or the assumption by the purchaser of
liabilities of the Company (other than liabilities of the Company that are by
their terms subordinated to the Notes) or liabilities of any Guarantor that made
such Asset Sale (other than liabilities of a Guarantor that are by their terms
subordinated to such Guarantor's Guarantee), in each case as a result of which
the Company and its remaining Restricted Subsidiaries are no longer liable for
such liabilities ("Permitted Consideration").
(b) The Net Available Cash from Asset Sales by the Company or a
Restricted Subsidiary may be applied by the Company or such Restricted
Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or
is required by the terms of any Pari Passu Indebtedness of the Company or a
Restricted Subsidiary), to:
(1) repay Indebtedness of the Company under a secured Credit Facility
with respect to the assets securing such Credit Facility or repay
Indebtedness of a Foreign Subsidiary with the proceeds received with
respect to assets of such Foreign Subsidiary;
(2) reinvest in Additional Assets (including by means of an Investment
in Additional Assets by a Restricted Subsidiary with Net Available Cash
received by the Company or another Restricted Subsidiary); or
(3) purchase Notes or purchase both Notes and one or more series or
issues of other Senior Indebtedness on a pro rata basis (excluding Notes
and Senior Indebtedness owned by the Company or an Affiliate of the
Company).
(c) Any Net Available Cash from an Asset Sale not applied in
accordance paragraph (b) above within 365 days from the date of such Asset Sale
shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $25.0 million, the Company will be required to make an offer to purchase
Notes having an aggregate principal amount equal to the aggregate amount of
Excess Proceeds (the "Prepayment Offer") at a purchase price (the "Prepayment
Offer Price") equal to 100% of the principal amount of such Notes plus accrued
and unpaid interest, if any, to the Asset Sale Purchase Date (as defined in
paragraph (d) below) in accordance with the procedures (including prorating in
the event of over subscription) set forth in this Indenture, but, if the terms
of any Pari Passu Indebtedness require that a Pari Passu Offer be made
contemporaneously with the Prepayment Offer, then the Excess Proceeds shall be
prorated between the Prepayment Offer and such Pari Passu Offer in accordance
with the aggregate outstanding principal amounts of the Notes and such Pari
Passu Indebtedness, and the aggregate principal amount of Notes for which the
Prepayment Offer is made shall be reduced accordingly. If the aggregate
principal amount of Notes tendered by Holders thereof exceeds the amount of
available Excess Proceeds, then such Excess Proceeds will be allocated pro rata
according to the
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principal amount of the Notes tendered and the Trustee will select the Notes to
be purchased in accordance with this Indenture. To the extent that any portion
of the amount of Excess Proceeds remains after compliance with the second
sentence of this paragraph (c) and provided that all Holders of Notes have been
given the opportunity to tender their Notes for purchase as described in
paragraph (d) below in accordance with this Indenture, the Company and its
Restricted Subsidiaries may use such remaining amount for purposes permitted by
this Indenture and the amount of Excess Proceeds will be reset to zero.
(d) Within 30 days after the 365th day following the date of an Asset
Sale, the Company shall, if it is obligated to make an offer to purchase the
Notes pursuant to paragraph (c) above, deliver a written Prepayment Offer notice
to the Holders of the Notes (the "Prepayment Offer Notice"), accompanied by such
information regarding the Company and its Subsidiaries as the Company believes
will enable such Holders of the Notes to make an informed decision with respect
to the Prepayment Offer. The Prepayment Offer Notice will state, among other
things:
(1) that the Company is offering to purchase Notes pursuant to the
provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and
duly paid on the Asset Sale Purchase Date) pursuant to the Prepayment Offer
shall cease to accrue interest on the Asset Sale Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered will
continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to
any contrary requirements of applicable law, no less than 30 days nor more
than 60 days after the date the Prepayment Offer Notice is mailed (the
"Asset Sale Purchase Date");
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow
in order to tender their Notes and the procedures that Holders of Notes
must follow in order to withdraw an election to tender their Notes for
payment; and
(7) all other instructions and materials necessary to enable Holders
to tender Notes pursuant to the Prepayment Offer.
(e) If the Company becomes obligated to make a Prepayment Offer
pursuant to clause (c) above, the Notes and the Pari Passu Indebtedness shall be
purchased by the Company, at the option of the holders thereof, in whole or in
part in amounts of $1,000 or whole multiples of $1,000 in excess thereof, on the
Asset Sale Purchase Date.
(f) The Company shall comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
or regulations thereunder to the extent such laws and regulations are applicable
in connection with the purchase of Notes as described above. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions relating to the Prepayment Offer, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.11 by virtue thereof.
(g) Holders electing to have Notes purchased hereunder will be
required to surrender such Notes at the address specified in the notice prior to
the Asset Sale Purchase Date. Holders will be
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entitled to withdraw their election to have their Notes purchased pursuant to
this Section 4.11 if the Company receives, not later than one Business Day prior
to the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth (1) the name of the Holder, (2) the certificate number of
the Note in respect of which such notice of withdrawal is being submitted, (3)
the principal amount of the Note (which shall be $1,000 or whole multiples of
$1,000 in excess thereof) delivered for purchase by the Holder as to which his
election is to be withdrawn, (4) a statement that such Holder is withdrawing his
election to have such principal amount of such Note purchased, and (5) the
principal amount, if any, of such Note (which shall be $1,000 or whole multiples
of $1,000 in excess thereof) that remains subject to the original Prepayment
Offer Notice and that has been or will be delivered for purchase by the Company.
(h) The Company shall (i) not later than the Asset Sale Purchase Date
accept for payment Notes or portions thereof tendered pursuant to the Prepayment
Offer, (ii) not later than 10:00 a.m. (New York time) on the Asset Sale Purchase
Date deposit with the Trustee or with a Paying Agent an amount of money in same
day funds sufficient to pay the aggregate Prepayment Offer Price, as the case
may be, of all the Notes or portions thereof which are to be purchased on that
date and (iii) not later than 10:00 a.m. (New York time) on the Asset Sale
Purchase Date, as the case may be, deliver to the Paying Agent an Officers'
Certificate stating the Notes or portions thereof accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so
accepted payment in an amount equal to the Prepayment Offer Price of the Notes
purchased from each such Holder, and the Company shall execute and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Note equal
in principal amount to any unpurchased portion of the Note surrendered. Any
Notes not so accepted shall be promptly mailed or delivered by the Paying Agent
at the Company's expense to the Holder thereof. For purposes of this Section
4.11, the Company shall choose a Paying Agent which shall not be the Company.
Subject to applicable escheat laws, the Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed, together with
interest, if any, thereon (subject to Section 7.01(f)), held by them for the
payment of the Prepayment Offer Price, as the case may be; provided, however,
that (x) to the extent that the aggregate amount of cash deposited by the
Company with the Trustee in respect of a Prepayment Offer, as the case may be,
exceeds the aggregate Prepayment Offer Price of the Notes or portions thereof to
be purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Asset Sale Purchase Date, as the case may be, the Trustee
shall return any such excess to the Company together with interest or dividends,
if any, thereon (subject to Section 7.01(f)).
(i) Notes to be purchased shall, on the Asset Sale Purchase Date,
become due and payable at the Prepayment Offer Price, as the case may be, and
from and after such date (unless the Company shall default in the payment of the
Prepayment Offer Price) such Notes shall cease to bear interest. Such Prepayment
Offer Price shall be paid to such Holder promptly following the later of the
Asset Sale Purchase Date and the time of delivery of such Note to the relevant
Paying Agent at the office of such Paying Agent by the Holder thereof in the
manner required. Upon surrender of any such Note for purchase in accordance with
the foregoing provisions, such Note shall be paid by the Company at the
Prepayment Offer Price; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Asset Sale Purchase Date shall be payable
to the Person in whose name the Notes are registered as such on the relevant
record dates according to the terms and the provisions of Section 2.04; provided
further that Notes to be purchased are subject to proration in the event the
Excess Proceeds are less than the aggregate Prepayment Offer Price of all Notes
tendered for purchase, with such adjustments as may be appropriate by the
Trustee so that only Notes in denominations of $1,000 or whole multiples of
$1000 in excess thereof, shall be purchased. If any Note tendered for purchase
shall not be so paid upon surrender thereof by deposit of funds with the Trustee
or a Paying Agent in accordance with paragraph (i) above, the principal thereof
(and premium, if any, thereon) shall, until paid, bear interest from the Asset
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Sale Purchase Date at the rate borne by such Note. Any Note that is to be
purchased only in part shall be surrendered to a Paying Agent at the office of
such Paying Agent (with, if the Company, the Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Registrar or the Trustee duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing), and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge, one or more new Notes of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered that is not purchased. The Company shall publicly announce
the results of the Prepayment Offer, as the case may be, on or as soon as
practicable after the Asset Sale Purchase Date.
Section 4.12. Issuances of Guarantees by Restricted Subsidiaries.
The Company shall provide to the Trustee, on or prior to the 30th day
after the date that (i) any Person (other than a Foreign Subsidiary, a
Receivables Subsidiary or Invatection Insurance Company or any other captive
insurance Restricted Subsidiary) becomes a Restricted Subsidiary, (ii) any
Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, or (iii) any
Restricted Subsidiary of the Company (which is not a Receivables Subsidiary or a
Guarantor other than Invatection Insurance Company or any other captive
insurance domestic Restricted Subsidiary) becomes a guarantor or obligor in
respect of any Indebtedness of the Company or any of the domestic Restricted
Subsidiaries, in each case, a supplemental indenture to this Indenture
substantially in the form of Exhibit F hereto, executed by such Restricted
Subsidiary, providing for a full and unconditional guarantee on a senior basis
by such Restricted Subsidiary of the Company's obligations under the Notes and
this Indenture to the same extent as that set forth in this Indenture.
Section 4.13. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distribution on its Capital Stock,
(2) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary,
(3) make loans or advances to the Company or any other Restricted
Subsidiary, or
(4) sell, lease or transfer any of its properties or assets to the
Company or any other Restricted Subsidiary.
(b) However, paragraph (a) above shall not prohibit any encumbrance or
restriction created, existing or becoming effective under or by reason of:
(1) any agreement (including the Senior Credit Facilities) in effect
on the date of this Indenture;
(2) any agreement or instrument with respect to a Restricted
Subsidiary that is not a Restricted Subsidiary of the Company on the date
of this Indenture, in existence at the time such Person becomes a
Restricted Subsidiary of the Company and not incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary,
provided that such encumbrances and restrictions are not applicable to the
Company or any Restricted Subsidiary or
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the properties or assets of the Company or any Restricted Subsidiary other
than such Subsidiary which is becoming a Restricted Subsidiary;
(3) any agreement or instrument governing any Acquired Debt or other
agreement of any entity or related to assets acquired by or merged into or
consolidated with the Company or any Restricted Subsidiaries, so long as
such encumbrance or restriction (A) was not entered into in contemplation
of the acquisition, merger or consolidation transaction, and (B) is not
applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired, so
long as the agreement containing such restriction does not violate any
other provision of this Indenture;
(4) existing under applicable law or any requirement of any regulatory
body;
(5) encumbrance or restriction pursuant to the security documents
evidencing any Liens securing Indebtedness otherwise permitted to be
incurred under the provisions of Section 4.10 hereof that limit the right
of the debtor to dispose of the assets subject to such Liens;
(6) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of the Company or any Restricted
Subsidiary, or customary restrictions in licenses relating to the property
covered thereby and entered into in the ordinary course of business;
(7) asset sale agreements permitted to be incurred under the
provisions of Section 4.11 hereof that limit the transfer of such assets
pending the closing of such sale;
(8) shareholders', partnership or joint venture agreements entered
into in the ordinary course of business; provided, however, that such
restrictions do not apply to any Restricted Subsidiaries other than the
applicable company, partnership or joint venture; and provided, further,
however, that such encumbrances and restrictions may not materially impact
the ability of the Company to permit payments on the Notes when due as
required by the terms of this Indenture;
(9) cash or other deposits or net worth, imposed by suppliers or
landlords under contracts entered into in the ordinary course of business;
(10) any other Credit Facility governing debt of the Company or any
Guarantor, permitted to be incurred under the provisions of Section 4.07
hereof that are not (in the view of the Board of Directors of the Company
as expressed in a Board Resolution thereof) materially more restrictive,
taken as a whole, than those contained in the Senior Credit Facilities; and
(11) under Indebtedness or other contractual requirements of a
Receivables Subsidiary in connection with a Qualified Receivables
Transaction; provided, however, that such restrictions apply only to such
Receivables Subsidiary or the Receivables Assets that are subject to such
Qualified Receivables Transaction;
(12) any encumbrance or restriction in connection with a transaction
of the type contemplated pursuant to clause (13) of the definition of
Permitted Debt; and
(13) encumbrance or restriction under any agreement, amendment,
modification, restatement, renewal, supplement, refunding, replacement or
refinancing that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the
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foregoing clauses (1) through (12), or in this clause (13), provided that
the terms and conditions of any such encumbrances or restrictions are no
more restrictive in any material respect taken as a whole than those under
or pursuant to the agreement evidencing the Indebtedness so extended,
renewed, refinanced or replaced.
Section 4.14. Sale Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any Sale Leaseback Transaction; provided, that the
Company or one of its Restricted Subsidiaries may enter into a Sale Leaseback
Transaction if:
(1) the Company or such Subsidiary could have incurred Indebtedness in
an amount equal to the Attributable Indebtedness relating to such Sale Leaseback
Transaction pursuant to the Consolidated Interest Coverage Ratio test set forth
in paragraph (a) of Section 4.07 hereof;
(2) the gross cash proceeds of such Sale Leaseback Transaction are at
least equal to the Fair Market Value of the property that is the subject of such
Sale Leaseback Transaction; and
(3) the transfer of assets in such Sale Leaseback Transaction is
permitted by, and the Company applies the proceeds of such transaction in the
same manner and to the same extent as Net Available Cash and Excess Proceeds
from an Asset Sale in compliance with, Section 4.11 hereof.
Section 4.15. Lines of Business.
Neither the Company nor any of its Restricted Subsidiaries will
directly or indirectly engage in any line or lines of business activity other
than that which is a Permitted Business.
Section 4.16. Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate after the
Issue Date any Subsidiary as an "Unrestricted Subsidiary" under this Indenture
(a "Designation") only if:
(1) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(2) (x) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to paragraph (a) of Section
4.08 hereof in an amount (the "Designation Amount") equal to the greater of
(1) the net book value of the Company's interest in such Subsidiary
calculated in accordance with GAAP or (2) the Fair Market Value of the
Company's interest in such Subsidiary as determined in good faith by the
Company's Board of Directors, or (y) the Designation Amount is less than
$10,000;
(3) the Company would be permitted under this Indenture to incur $1.00
of additional Indebtedness (other than Permitted Debt) pursuant to Section
4.07 hereof at the time of such Designation (assuming the effectiveness of
such Designation);
(4) such Unrestricted Subsidiary does not own any Capital Stock in any
Restricted Subsidiary of the Company which is not simultaneously being
designated an Unrestricted Subsidiary;
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(5) such Unrestricted Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted
Subsidiary Indebtedness, provided that an Unrestricted Subsidiary may
provide a Guarantee for the Notes; and
(6) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Company or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company or, in the event such
condition is not satisfied, the value of such agreement, contract,
arrangement or understanding to such Unrestricted Subsidiary shall be
deemed a Restricted Payment.
(b) In the event of any such Designation, the Company shall be deemed
to have made an Investment constituting a Restricted Payment pursuant to Section
4.08 hereof, for all purposes of this Indenture, in the Designation Amount.
(c) The Company shall not and shall not cause or permit any Restricted
Subsidiary to at any time
(1) provide credit support for, guarantee or subject any of its
property or assets (other than the Capital Stock of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing
such Indebtedness), provided, however, that this Section 4.16 shall not be
deemed to prevent Permitted Investments in Unrestricted Subsidiaries that
are otherwise allowed under this Indenture, or
(2) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary.
(d) For purposes of the foregoing, the Designation of a Subsidiary of
the Company as an Unrestricted Subsidiary shall be deemed to be the Designation
of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries.
Unless so designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company will be classified as a Restricted Subsidiary.
(e) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(1) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation;
(2) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at such
time, have been permitted to be incurred for all purposes of this Indenture; and
(3) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Indebtedness that would be Permitted Debt),
immediately after giving effect to such proposed Revocation, and after giving
pro forma effect to the incurrence of any such Indebtedness of such redesignated
Subsidiary as if such Indebtedness was incurred on the date of the Revocation,
the Company could incur $1.00 of additional Indebtedness (other than Permitted
Debt) pursuant to Section 4.07 hereof.
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(f) All Designations and Revocations must be evidenced by a Board
Resolution of the Board of Directors of the Company and an Officers' Certificate
delivered to the Trustee certifying compliance with the foregoing provisions of
this Section 4.16.
Section 4.17. Payments for Consent.
Neither the Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or is paid to all Holders of Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.18. Offer to Repurchase upon a Change of Control.
(a) If a Change of Control occurs, each Holder of Notes shall have the
right to require that the Company purchase all or any part (in amounts of $1,000
or whole multiples of $1,000 in excess thereof) of such Holder's Notes pursuant
to the offer described below (the "Change of Control Offer"). In the Change of
Control Offer, the Company shall offer to purchase all of the Notes, at a
purchase price (the "Change of Control Purchase Price") in cash in an amount
equal to 101% of the principal amount of such Notes, plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control Purchase
Date") (subject to the rights of holders of record on relevant record dates to
receive interest due on an interest payment date).
(b) Within 30 days after any Change of Control or, at the Company's
option, prior to such Change of Control but after it is publicly announced, the
Company must notify the Trustee and give written notice of the Change of Control
(the "Change of Control Purchase Notice") to each Holder of Notes at his address
appearing in the security register. The Change of Control Purchase Notice must
state, among other things:
(1) that a Change of Control has occurred or will occur and the date
of such event;
(2) the circumstances and relevant facts regarding such Change of
Control, including information with respect to pro forma historical income,
cash flow and capitalization after giving effect to such Change of Control;
(3) the Change of Control Purchase Price and the Change of Control
Purchase Date, which shall be fixed by the Company on a Business Day no
earlier than 30 days nor later than 60 days from the date the notice is
mailed, or such later date as is necessary to comply with requirements
under the Exchange Act; provided that the Change of Control Purchase Date
may not occur prior to the Change of Control;
(4) that any Note not tendered will continue to accrue interest;
(5) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date; and
(6) other procedures that a Holder of Notes must follow to accept a
Change of Control Offer or to withdraw acceptance of the Change of Control
Offer.
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(c) Upon receipt by the Company of the proper tender of Notes, the
Holder of the Note in respect of which such proper tender was made shall (unless
the tender of such Note is properly withdrawn at least one Business Day prior to
the Change of Control Purchase Date) thereafter be entitled to receive solely
the Change of Control Purchase Price with respect to such Notes. Upon surrender
of any such Note for purchase in accordance with the foregoing provisions, such
Note shall be paid by the Company at the Change of Control Purchase Price;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Change of Control Purchase Date shall be payable to the Holders of
such Notes, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 2.03. If any Note tendered for purchase
in accordance with the provisions of this Section 4.18 shall not be so paid upon
surrender thereof, the principal thereof (and premium, if any, thereon) shall,
until paid, bear interest from the Change of Control Purchase Date at the rate
borne by such Note. Holders electing to have Notes purchased will be required to
surrender such Notes to the Paying Agent at the address specified in the Change
of Control Purchase Notice at least one Business Day prior to the Change of
Control Purchase Date. Any Note that is to be purchased only in part shall be
surrendered to a Paying Agent at the office of such Paying Agent (with, if the
Company, the Registrar or the Trustee so require, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Note, without service charge, one or more new Notes of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Note so
surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) not later than 10:00 a.m. (New York time) on
the Business Day following the Change of Control Purchase Date, deposit with the
Trustee or with a Paying Agent an amount of money in same day funds sufficient
to pay the aggregate Change of Control Purchase Price of all the Notes or
portions thereof which have been so accepted for payment and (iii) not later
than 10:00 a.m. (New York time) on the Business Day following the Change of
Control Purchase Date, deliver to the Paying Agent an Officers' Certificate
stating the Notes or portions thereof accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to Holders of Notes so accepted
payment in an amount equal to the Change of Control Purchase Price of the Notes
purchased from each such Holder, and the Company shall execute and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Note equal
in principal amount to any unpurchased portion of the Note surrendered. Any
Notes not so accepted shall be promptly returned by the Paying Agent at the
Company's expense to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer on the Change of Control Purchase Date.
For purposes of this Section 4.18, the Company shall choose a Paying Agent which
shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice
may be withdrawn if the Company receives, not later than one Business Day prior
to the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such notice
of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be $1,000 or whole
multiples of $1,000 in excess thereof) delivered for purchase by the Holder
as to which such notice of withdrawal is being submitted;
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(4) a statement that such Holder is withdrawing his election to have
such principal amount of such Note purchased; and
(5) the principal amount, if any, of such Note (which shall be $1,000
or whole multiples of $1,000 in excess thereof) that remains subject to the
original Change of Control Purchase Notice and that has been or will be
delivered for purchase by the Company.
(f) Subject to applicable escheat laws, the Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon (subject to Section 7.01(f) hereof), held
by them for the payment of the Change of Control Purchase Price; provided,
however, that (x) to the extent that the aggregate amount of cash deposited by
the Company pursuant to clause (ii) of paragraph (d) above exceeds the aggregate
Change of Control Purchase Price of the Notes or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Change of Control Purchase Date the Trustee shall return any
such excess to the Company together with interest, if any, thereon (subject to
Section 7.01(f) hereof).
(g) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 4.18, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.18 by virtue of such conflict.
(h) Notwithstanding the foregoing, the Company shall not be required
to make a Change of Control Offer upon a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
Section 4.19. Corporate Existence.
Subject to Article Five, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary; provided that the Company shall not be required to preserve any such
right or franchise or to preserve the existence of any Subsidiary if the Board
of Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders.
ARTICLE FIVE
SUCCESSORS
Section 5.01. Consolidation, Merger and Sale of Assets.
(a) The Company will not, in a single transaction or through a series
of related transactions, consolidate with or merge with or into any other Person
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
Persons, or permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions, if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets
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of the Company and its Restricted Subsidiaries on a Consolidated basis to any
other Person or group of Persons (other than the Company or a Guarantor), unless
at the time and after giving effect thereto:
(1) either (a) the Company will be the continuing corporation or (b)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially
all of the properties and assets of the Company and its Restricted
Subsidiaries on a Consolidated basis (the "Surviving Entity") will be a
corporation or limited liability company duly organized and validly
existing under the laws of the United States of America, any state thereof
or the District of Columbia and such Person expressly assumes, by a
supplemental indenture, in a form reasonably satisfactory to the Trustee,
all the obligations of the Company under the Notes and this Indenture, and
the Notes and this Indenture will remain in full force and effect as so
supplemented (and any Guarantees will be confirmed as applying to such
Surviving Entity's obligations);
(2) immediately before and immediately after giving effect to such
transaction on a pro forma basis (and treating any Indebtedness not
previously an obligation of the Company or any of its Restricted
Subsidiaries which becomes the obligation of the Company or any of its
Restricted Subsidiaries as a result of such transaction as having been
incurred at the time of such transaction), no Default or Event of Default
will have occurred and be continuing;
(3) immediately before and immediately after giving effect to such
transaction on a pro forma basis (on the assumption that the transaction
occurred on the first day of the four-quarter period for which financial
statements are available ending immediately prior to the consummation of
such transaction with the appropriate adjustments with respect to the
transaction being included in such pro forma calculation), the Company (or
the Surviving Entity if the Company is not the continuing obligor under
this Indenture) could incur $1.00 of additional Indebtedness (other than
Permitted Debt) under Section 4.07 hereof;
(4) at the time of the transaction, each Guarantor, if any, unless it
is the other party to the transactions described above, will have by
supplemental indenture confirmed that its Guarantee shall apply to such
Person's obligations under this Indenture and the Notes;
(5) at the time of the transaction, if any of the property or assets
of the Company or any of its Restricted Subsidiaries would thereupon become
subject to any Lien, Section 4.10 hereof is complied with; and
(6) at the time of the transaction, the Company or the Surviving
Entity will have delivered, or caused to be delivered, to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger, transfer, sale, assignment, conveyance, lease or
other transaction and the supplemental indenture in respect thereof comply
with this Indenture and that all conditions precedent provided in this
Indenture relating to such transaction have been complied with.
(b) Except as provided under Section 10.04 hereof, each Guarantor will
not, and the Company will not permit a Guarantor to, in a single transaction or
through a series of related transactions, consolidate with or merge with or into
any other Person (other than the Company or any other Guarantor) unless at the
time and after giving effect thereto:
(1) either (a) the Guarantor will be the continuing Person in the case
of a consolidation or merger involving the Guarantor or (b) the Person (if
other than the Guarantor)
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formed by such consolidation or into which such Guarantor is merged (the
"Surviving Guarantor Entity") will be a corporation, limited liability
company, limited liability partnership, partnership, trust or other entity
duly organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and such Person
expressly assumes, by a supplemental indenture, in a form reasonably
satisfactory to the Trustee, all the obligations of such Guarantor under
its Guarantee of the Notes and this Indenture, and such Guarantee and this
Indenture will remain in full force and effect;
(2) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default will have
occurred and be continuing; and
(3) at the time of the transaction such Guarantor or the Surviving
Guarantor Entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect that
such consolidation or merger and the supplemental indenture in respect
thereof comply with this Indenture and that all conditions precedent
provided in this Indenture relating to such transaction have been complied
with;
provided, however, that this paragraph shall not apply to any Guarantor whose
Guarantee of the Notes is unconditionally released and discharged in accordance
with Section 10.04 hereof.
(c) Notwithstanding the foregoing, the Company or any Guarantor may
merge with an Affiliate incorporated or organized solely for the purpose of
reincorporating or reorganizing the Company or Guarantor in another jurisdiction
to realize tax or other benefits.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" will occur under this Indenture (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) if:
(1) there shall be a default in the payment of any interest on any
Note when it becomes due and payable, and such default shall continue for a
period of 30 days;
(2) there shall be a default in the payment of the principal of (or
premium, if any, on) any Note at its Maturity (upon acceleration, optional
or mandatory redemption, if any, required repurchase or otherwise);
(3) there shall be a default in the performance or breach of the
provisions of Article Five, the Company shall have failed to make or
consummate a Prepayment Offer in accordance with Section 4.11 hereof, or
the Company shall have failed to make or consummate a Change of Control
Offer in accordance with Section 4.18 hereof;
(4) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company or any Guarantor under this Indenture
or any Guarantee (other than a default in the performance, or breach, of a
covenant or agreement which is specifically dealt with in clause (1), (2)
or (3) above) and such default or breach shall continue for a period of 60
days
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after written notice has been given, by overnight delivery, (1) to the
Company by the Trustee or (2) to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the outstanding Notes;
(5) (a) any default in the payment of the principal, premium, if any,
or interest on any Indebtedness shall have occurred under any of the
agreements, indentures or instruments under which the Company, any
Guarantor or any other Restricted Subsidiary then has outstanding
Indebtedness in excess of $25.0 million when the same shall become due and
payable in full and such default shall have continued after any applicable
grace period and shall not have been cured or waived and, if not already
matured at its final maturity in accordance with its terms, the holder of
such Indebtedness shall have the right to accelerate such Indebtedness or
(b) an event of default as defined in any of the agreements, indentures or
instruments described in clause (a) of this clause (5) shall have occurred
and the Indebtedness thereunder, if not already matured at its final
maturity in accordance with its terms, shall have been accelerated;
(6) any Guarantee shall for any reason cease to be, or shall for any
reason be asserted in writing by any Guarantor or the Company not to be, in
full force and effect and enforceable in accordance with its terms, except
to the extent contemplated by this Indenture and any such Guarantee
including any release of Guarantee pursuant to Section 10.04;
(7) one or more judgments, orders or decrees of any court or
regulatory or administrative agency for the payment of money in excess of
$25.0 million, either individually or in the aggregate, shall be rendered
against the Company, any Guarantor or any other Restricted Subsidiary or
any of their respective properties and shall not be discharged and either
(a) any creditor shall have commenced an enforcement proceeding upon such
judgment, order or decree or (b) there shall have been a period of 60
consecutive days during which a stay of enforcement of such judgment or
order, by reason of an appeal or otherwise, shall not be in effect;
(8) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in respect of
the Company or any Significant Subsidiary under any Bankruptcy Law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Significant Subsidiary or of
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days; or
(9) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking reorganization
or relief under any Bankruptcy Law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or any Significant Subsidiary or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due.
Section 6.02. Acceleration.
(a) If an Event of Default (other than as specified in Section 6.01(8)
or (9) above with respect to the Company) shall occur and be continuing with
respect to this Indenture, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding may, and
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the Trustee at the request of such Holders shall, declare all unpaid principal
of, premium, if any, and accrued interest on all Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders of the Notes) and upon any such declaration, such principal,
premium, if any, and interest shall become due and payable immediately. If an
Event of Default specified in Section 6.01(8) or (9) above with respect to the
Company occurs and is continuing, then all the Notes shall ipso facto become due
and payable immediately in an amount equal to the principal amount of the Notes,
together with accrued and unpaid interest, if any, to the date the Notes become
due and payable, without any declaration or other act on the part of the Trustee
or any Holder of Notes. Thereupon, the Trustee may, at its discretion, proceed
to protect and enforce the rights of the Holders of Notes by appropriate
judicial proceedings.
(b) After a declaration of acceleration, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the
Holders of a majority in aggregate principal amount of Notes outstanding by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, (B) all overdue interest
on all Notes then outstanding, (C) the principal of, and premium, if any,
on any Notes then outstanding which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Notes and (D) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Notes;
(2) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and
(3) all Events of Default, other than the non-payment of principal of,
premium, if any, and interest on the Notes which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
this Indenture.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
(c) In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant to
the optional redemption provisions of this Indenture, an equivalent premium
shall also become and be immediately due and payable to the extent permitted by
law upon the acceleration of the Notes. If an Event of Default occurs during any
time that the Notes are outstanding, by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the premium payable upon optional redemption of the Notes, then the
premium specified in this Indenture shall also become immediately due and
payable to the extent permitted by law upon the acceleration of the Notes.
Section 6.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, or interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
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(b) The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon and during the continuance of an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Notes outstanding may on behalf of the Holders of all outstanding Notes
waive any past Default or Event of Default under this Indenture and its
consequences, except a Default or Event of Default (1) in the payment of the
principal of, premium, if any, or interest on any Note (which may only be waived
with the consent of each Holder of Notes affected) or (2) in respect of a
covenant or provision which under this Indenture cannot be modified or amended
without the consent of the Holder of each Note affected by such modification or
amendment. The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Notes, respectively. This Section 6.04 shall be
in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the
TIA is hereby expressly excluded from this Indenture and the Notes, as permitted
by the TIA. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest.
Section 6.06. Limitation on Suits.
(a) A Holder has a right to institute any proceeding with respect to
this Indenture, or the Notes or any Guarantees, only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee reasonable indemnity against any loss, liability or
expense that might be incurred by it in connection with the request or
direction;
(4) the Trustee does not comply with the request within 15 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
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(5) during such 15-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the written request.
(b) A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium, if any, or
interest on such Note, on or after the respective due dates expressed in such
Note (including in connection with an offer to purchase), or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) above
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of overdue principal of, premium, if any, interest remaining unpaid on
the Notes and interest on overdue principal and premium, if any, and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
or any Guarantor (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other securities or property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. Priorities.
(a) If the Trustee collects any money or other property pursuant to
this Article Six, it shall pay out the money and other property in the following
order:
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First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, interest ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
(b) The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than ten percent in principal amount of the then outstanding Notes.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, and is
actually known to the Trustee, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
duties, covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to 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. This Section 7.01(b) shall be in lieu of Section
315(a) of the TIA and such Section 315(a) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
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(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:
(i) this Section 7.01(c) does not limit the effect of Sections
7.01(b) and 7.01(g);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections
315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from
this Indenture, as permitted by the TIA.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to this Section
7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company (provided that any interest earned on money held by the Trustee in trust
hereunder shall be the property of the Company).
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 7.02. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) 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, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate or an Opinion of Counsel;
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(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to, during
regular business hours, examine the books, records and premises of the Company,
personally or by agent or attorney at the sole cost of the Company and shall
incur no liability or additional liability of any kind by reason of such inquiry
or investigation;
(i) except with respect to Section 4.01, the Trustee shall have no
duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 4. In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event of
Default occurring pursuant to Sections 6.01(1) or 6.01(2) or (ii) any Default or
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge;
(j) 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;
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;
(l) the permissive rights of the Trustee to take certain actions under
this Indenture shall not be construed as a duty unless so specified herein; and
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(m) delivery of reports, information and documents to the Trustee
under Section 4.03 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(n) in no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to, and shall have no
responsibility for, the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use or application by the Company of
the Notes or of the proceeds from the Notes, it shall not be responsible for the
correctness of any statement in the registration statement for the Notes under
the Securities Act or in any offering document for the Notes, the Indenture or
the Notes (other than its certificate of authentication), or the determination
as to which beneficial owners are entitled to receive any notices hereunder.
Section 7.05. Notice of Default.
If a Default or Event of Default occurs and if it is known to the
Trustee, the Trustee shall give to each Holder notice of the Default or Event of
Default (and, to the extent applicable, notice if any payment is due with
respect to Section 6.03) within 90 days after it occurs or, if later, within 15
days after it is known to the Trustee, unless such Default or Event of Default
shall have been cured or waived before the giving of such notice.
Notwithstanding the preceding sentence, except in the case of a Default or Event
of Default described in clauses (1) and (2) of Section 6.01, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interest of the
Holders. The preceding sentence shall be in lieu of the proviso to Section
315(b) of the TIA and such proviso is hereby expressly excluded from this
Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default or Event of Default unless a Responsible Officer of the
Trustee has received written notice of such Default or Event of Default, which
notice specifically references this Indenture and the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each December 31 beginning with December 31,
2007, the Trustee shall deliver to the Holders of the Notes a brief report dated
as of such December 31 that complies with TIA Section 313(a) if required by such
Section 313(a). The Trustee shall also comply with TIA Section 313(b). Any
reports required by this Section 7.06 shall be transmitted by mail to the Holder
of the Notes pursuant to TIA Section 313(c).
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(b) A copy of each report at the time of its delivery to the Holders
of Notes shall be filed with the Commission and each securities exchange, if
any, on which the Notes are listed. The Company agrees to notify the Trustee
promptly whenever the Notes become listed on any securities exchange and of any
delisting thereof.
Section 7.07. Compensation and Indemnity.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its own negligence, willful misconduct or bad faith; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including reasonable attorney's fees and expenses,
and taxes (other than taxes based upon, measured by or determined by the income
of the Trustee)) incurred without negligence, willful misconduct or bad faith on
its part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against any
claim (whether asserted by the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay the principal amount
of and interest on the Notes.
The Company's payment, reimbursement and indemnity obligations
pursuant to this Section 7.07 shall survive the satisfaction and discharge of
this Indenture, the resignation or removal of the Trustee and the termination of
this Indenture for any reason. In addition to and without prejudice to its
rights hereunder, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(8) or Section
6.01(9), the expenses, including the reasonable charges and expenses of its
counsel and the compensation for services payable pursuant to Section 7.07(a),
are intended to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or similar laws.
For the purposes of this Section 7.07, the "Trustee" shall include any
predecessor Trustee; provided, however, that except as may be otherwise agreed
among the parties, the negligence, willful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any other Trustee hereunder.
Section 7.08. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Company;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment
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pursuant to this Section 7.08. The Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company shall remove the
Trustee if::
(i) the Trustee fails to comply with Section 7.10 hereof;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or public officer takes charge of the Trustee or
its property; or
(iv) the Trustee becomes incapable of acting.
(b) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by a
resolution of the Board of Directors, a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.07.
(d) If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may petition any court of competent jurisdiction at the expense of
the Company for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) So long as no Default or Event of Default shall have occurred and
be continuing, if the Company shall have delivered to the Trustee (i) a Board
Resolution appointing a successor Trustee, effective as of a date at least 30
days after delivery of such Resolution to the Trustee, and (ii) an instrument of
acceptance of such appointment, effective as of such date, by such successor
Trustee in accordance with this Indenture, the Trustee shall be deemed to have
resigned as contemplated in this Section 7.08, the successor Trustee shall be
deemed to have been accepted as contemplated in this Indenture, all as of such
date, and all other provisions of this Indenture shall be applicable to such
resignation, appointment and acceptance.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business or assets to,
another Person, the resulting, surviving or transferee Person without any
further act shall be the successor Trustee, subject to Sections 7.10 and 7.11.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under
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such laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has (or its corporate
parent shall have) a combined capital and surplus of at least $100.0 million as
set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee 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
therein.
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Notes and all obligations of the Guarantors
shall be deemed to have been discharged with respect to their obligations under
the Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company and the Guarantors shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes and Guarantees,
respectively, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in clauses (a) and (b) below, and to have satisfied all of their
other obligations under such Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from Funds in Trust (as defined in Section
8.04 hereof and as more fully set forth in such Section) payments in respect of
the principal of, premium, if any, and interest on such Notes when such payments
are due, (b) subject to the preceding clause (a), the Company's obligations with
respect to such Notes under Article Two and Section 4.02 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (d) this
Article Eight. Subject to compliance with this Article Eight, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations, and each Restricted Subsidiary shall be released from its
obligations, under the covenants contained in Sections 4.03, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.18 and 5.01 hereof with respect to
the outstanding Notes on and after the date the conditions
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set forth in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company and each Restricted Subsidiary may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, Sections 6.01(3) through (7) shall not constitute Events of
Default.
Section 8.04. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with
the Trustee, in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Notes cash in United States
dollars, U.S. Government Obligations, or a combination thereof ("Funds in
Trust"), in such amounts as, in the aggregate, will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm, to pay and discharge the
principal of, premium, if any, and interest on the outstanding Notes on the
Stated Maturity (or on any date after February 15, 2011 (such date being
referred to as the "Defeasance Redemption Date"), if at or prior to electing
either Legal Defeasance or Covenant Defeasance, the Company has delivered to the
Trustee an irrevocable notice to redeem all of the outstanding Notes on the
Defeasance Redemption Date);
(b) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee an opinion of independent counsel in the United States stating
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion of independent counsel in the
United States shall confirm that, the Holders and Beneficial Owners of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of independent counsel in the United States
to the effect that the Holders and Beneficial Owners of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as clause (8) or (9) of
Section 6.01 is concerned, at any time during the period ending on the 91st day
after the date of deposit;
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(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture or any
other material agreement or instrument to which the Company, any Guarantor or
any Restricted Subsidiary is a party or by which it is bound;
(f) such Legal Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder;
(g) the Company shall have delivered to the Trustee an opinion of
independent counsel in the United States to the effect that (assuming no Holder
of the Notes would be considered an insider of the Company or any Guarantor
under any applicable bankruptcy or insolvency law and assuming no intervening
bankruptcy or insolvency of the Company or any Guarantor between the date of
deposit and the 91st day following the deposit) 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;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Notes or any Guarantee over the other creditors
of the Company or any Guarantor with the intent of defeating, hindering,
delaying or defrauding creditors of the Company, any Guarantor or others;
(i) no event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on the
Notes on the date of such deposit or at any time ending on the 91st day after
the date of such deposit; and
(j) the Company will have delivered to the Trustee an Officers'
Certificate and an opinion of independent counsel, each stating that all
conditions precedent provided for relating to either the Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with.
Section 8.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
(a) Subject to Section 8.06 hereof, all money and non-callable U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium and
interest, but such money need not be segregated from other funds except to the
extent required by law.
(b) The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable U.S.
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
(c) Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable U.S. Government Obligations
held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants, investment bank,
or appraisal firm
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expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.04(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company upon its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable U.S. Government Obligations in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations to make the related
payments under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company make any payment of principal of, premium, if any,
or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
(a) Notwithstanding Section 9.02 hereof, the Company, any Guarantor,
any other obligor under the Notes and the Trustee may modify, supplement or
amend this Indenture or the Notes without the consent of any Holder of a Note:
(1) to evidence the succession of another Person to the Company, a
Guarantor, or any other obligor under the Notes, and the assumption by any
such successor of the covenants of the Company, such Guarantor or such
obligor in this Indenture and in the Notes and in any Guarantee in
accordance with Section 5.01 hereof;
(2) to add to the covenants of the Company, any Guarantor or any other
obligor under the Notes for the benefit of the Holders of the Notes or to
surrender any right or power conferred upon the Company or any Guarantor or
any other obligor under the Notes, as applicable, in this Indenture, in the
Notes or in any Guarantee;
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(3) to cure any ambiguity, or to correct or supplement any provision
in this Indenture, the Notes or any Guarantee which may be a mistake or
inconsistent with any other provision in this Indenture, the Notes or any
Guarantee;
(4) to make any provision with respect to matters or questions arising
under this Indenture, the Notes or any Guarantee, provided that such
provisions shall not adversely affect the interest of the Holders of the
Notes in any material respect;
(5) to add a Guarantor or additional obligor under this Indenture or
permit any Person to guarantee the Notes and/or obligations under this
Indenture;
(6) to release a Guarantor as provided in this Indenture;
(7) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture;
(8) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders of the Notes as
additional security for the payment and performance of the Company's and
any Guarantor's obligations under this Indenture, in any property, or
assets, including any of which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to
or for the benefit of the Trustee pursuant to this Indenture or otherwise;
(9) to provide for the issuance of Additional Notes under this
Indenture in accordance with the limitations set forth in this Indenture;
(10) to conform any non-conforming language or defined terms in the
text of this Indenture, the Guarantees or the Notes to any provision of the
"Description of Notes" section of the Offering Memorandum so that such
provision in the "Description of Notes" section reflects a verbatim
recitation of a provision of this Indenture; or
(11) to comply with the rules of any applicable securities depositary.
(b) Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
12.04 and Section 9.06 hereof, the Trustee shall join with the Company in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
(a) Except as provided below in this Section 9.02, the Company, any
Guarantor, any other obligor under the Notes and the Trustee may amend or
supplement this Indenture or the Notes with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes (including
Additional Notes, if any) then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default or compliance with any provision of this Indenture
or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including Additional Notes, if
any) (including, without limitation, consents obtained
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in connection with a purchase of, or tender offer or exchange offer for, Notes).
However, without the consent of each Holder, an amendment or waiver under this
Section 9.02 may not:
(1) change the Stated Maturity of the principal of, or any installment
of interest on, or change to an earlier date any redemption date of, or
waive a default in the payment of the principal of, premium, if any, or
interest on, any such Note or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any such
Note or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the redemption
date);
(2) reduce the percentage in principal amount of such outstanding
Notes, the consent of whose Holders is required for any such amendment or
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture;
(3) modify any of the provisions relating to supplemental indentures
requiring the consent of Holders or relating to the waiver of past defaults
or relating to the waiver of certain covenants, except to increase the
percentage of such outstanding Notes required for such actions or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each such Note affected
thereby;
(4) except as otherwise permitted under Section 5.01 hereof, consent
to the assignment or transfer by the Company or any Guarantor of any of its
rights and obligations under this Indenture;
(5) voluntarily release, other than in accordance with this Indenture,
the Guarantee of any Guarantor; or
(6) amend or modify any of the provisions of this Indenture in any
manner which subordinates the Notes issued hereunder in right of payment to
any other Indebtedness of the Company or which subordinates any Guarantee
in right of payment to any other Indebtedness of the Guarantor issuing any
such Guarantee.
(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or its duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
(c) Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence reasonably
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.06 and
Section 12.04 hereof, the Trustee shall join with the Company in the execution
of such amended or supplemental indenture unless such amended or supplemental
indenture directly affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental
indenture.
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(d) It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
(e) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall deliver to the Holders of Notes a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to deliver such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
(a) The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
(b) Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental indenture or Note
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
Neither the Company nor any Guarantor may sign an amendment or supplemental
indenture or Note or Guarantee until its Board of Directors or trustees or sole
member (or committee serving a similar function), as the case may be, approves
it. In executing any amended or supplemental indenture or Note, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
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ARTICLE TEN
GUARANTEES
Section 10.01. Guarantee.
(a) Subject to this Article Ten, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees, on a senior unsecured basis,
to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of, premium and Additional Interest, if any, and
interest on the Notes will be promptly paid in full when due, whether at
Stated Maturity, by acceleration or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.
(b) The obligations of the Guarantors hereunder are independent of the
obligations of the Company under the Notes and this Indenture and a separate
action or actions may be brought and prosecuted against any Guarantor whether or
not an action or proceeding is brought against the Company and whether or not
the Company is joined in any such action or proceeding. The liability of the
Guarantors hereunder is irrevocable, absolute and unconditional and (to the
extent permitted by law) the liability and obligations of the Guarantors
hereunder shall not be released, discharged, mitigated, waived, impaired or
affected in whole or in part by:
(i) any defect or lack of validity or enforceability in respect
of any Indebtedness or other obligation of the Company or any other
Person under this Indenture or the Notes, or any agreement or
instrument relating to any of the foregoing;
(ii) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee or the Holders
may extend to, or make with, the Company, any Guarantor or any other
Person, or any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations under the
Indenture or the Notes, or any other amendment or waiver of, or any
consent to or departure from, this Indenture or the Notes, including
any increase or decrease in the Obligations under the Indenture or the
Notes;
(iii) the taking of security from the Company, any Guarantor or
any other Person, and the release, discharge or alteration of, or
other dealing with, such security;
(iv) the occurrence of any change in the laws, rules, regulations
or ordinances of any jurisdiction by any present or future action of
any governmental authority or court
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amending, varying, reducing or otherwise affecting, or purporting to
amend, vary, reduce or otherwise affect, any of the Obligations under
the Indenture or the Notes and the obligations of any Guarantor
hereunder;
(v) the abstention from taking security from the Company, any
Guarantor or any other Person or from perfecting, continuing to keep
perfected or taking advantage of any security;
(vi) any loss, diminution of value or lack of enforceability of
any security received from the Company, any Guarantor or any other
Person, and including any other guarantees received by the Trustee;
(vii) any other dealings with the Company, any Guarantor or any
other Person, or with any security;
(viii) Trustee's or the Holders' acceptance of compositions from
the Company or any Guarantor;
(ix) the application by the Holders or the Trustee of all monies
at any time and from time to time received from the Company, any
Guarantor or any other Person on account of any indebtedness and
liabilities owing by the Company or any Guarantor to the Trustee or
the Holders, in such manner as the Trustee or the Holders deems best
and the changing of such application in whole or in part and at any
time or from time to time, or any manner of application of collateral,
or proceeds thereof, to all or any of the Obligations under the
Indenture or the Notes, or the manner of sale of any collateral;
(x) the release or discharge of the Company or any Guarantor of
the Notes or of any Person liable directly as surety or otherwise by
operation of law or otherwise for the Notes, other than an express
release in writing given by the Trustee, on behalf of the Holders, of
the liability and obligations of any Guarantor hereunder;
(xi) any change in the name, business, capital structure or
governing instrument of the Company or any Guarantor or any
refinancing or restructuring of any of the Obligations under the
Indenture or the Notes;
(xii) the sale of the Company's or any Guarantor's business or
any part thereof;
(xiii) subject to Section 10.06, any merger or consolidation,
arrangement or reorganization of the Company, any Guarantor, any
Person resulting from the merger or consolidation of the Company or
any Guarantor with any other Person or any other successor to such
Person or merged or consolidated Person or any other change in the
corporate existence, structure or ownership of the Company or any
Guarantor or any change in the corporate relationship between the
Company and any Guarantor, or any termination of such relationship;
(xiv) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership, arrangement, readjustment, assignment for
the benefit of creditors or distribution of the assets of the Company
or its assets or any resulting discharge of any obligations of the
Company (whether voluntary or involuntary) or of any Guarantor
(whether voluntary or involuntary) or the loss of corporate existence;
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(xv) subject to Section 10.06, any arrangement or plan of
reorganization affecting the Company or any Guarantor;
(xvi) any failure, omission or delay on the part of the Company
to conform or comply with any term of this Indenture;
(xvii) any limitation on the liability or obligations of the
Company or any other Person under this Indenture, or any discharge,
termination, cancellation, distribution, irregularity, invalidity or
unenforceability in whole or in part of this Indenture;
(xviii) any other circumstance (including any statute of
limitations) that might otherwise constitute a defense available to,
or discharge of, the Company or any Guarantor; or
(xix) any modification, compromise, settlement or release by the
Trustee, or by operation of law or otherwise, of the Obligations under
the Indenture or the Notes or the liability of the Company or any
other obligor under the Notes, in whole or in part, and any refusal of
payment by the Trustee, in whole or in part, from any other obligor or
other guarantor in connection with any of the Obligations under the
Indenture or the Notes, whether or not with notice to, or further
assent by, or any reservation of rights against, each of the
Guarantors.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(d) Each Guarantor hereby waives all rights of subrogation or
contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under federal bankruptcy law) or
otherwise by reason of any payment by it pursuant to the provisions of this
Article 10 until payment in full of all Obligations under the Indenture, the
Notes and the Guarantees. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(1) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the
event of any declaration of acceleration of such obligations as provided in
Article Six hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor, if any,
so long as the exercise of such right does not impair the rights of the Holders
under the Guarantee, in a pro rata amount based on the net assets of each
Guarantor, determined in accordance with GAAP.
(e) The Obligations of each Guarantor under its Guarantee pursuant to
this Article Ten shall rank equally in right of payment with other existing and
future senior Indebtedness of such Guarantor, and senior in right of payment to
all existing and future Subordinated Indebtedness of such Guarantor.
Section 10.02. Guarantee is in Addition to Other Security.
This Guarantee shall be in addition to and not in substitution for any
other guarantees which the Trustee may now or hereafter hold in respect of the
Obligations under the Indenture and the
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Notes owing to the Trustee or the Holders by the Company and (except as may be
required by law) the Trustee shall be under no obligation to marshal in favor of
each of the Guarantors any other guarantees or any moneys or other assets which
the Trustee may be entitled to receive or upon which the Trustee or the Holders
may have a claim.
Section 10.03. Failure to Exercise Rights Shall Not Operate as a Waiver; No
Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders, any right, power, privilege or remedy under this
Article 10 and this Guarantee shall operate as a waiver thereof, nor shall any
single or partial exercise of any rights, power, privilege or remedy preclude
any other or further exercise thereof, or the exercise of any other rights,
powers, privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity.
(b) Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or
under applicable law.
Section 10.04. Limitation on Guarantor Liability.
Each Guarantor that is a Subsidiary of the Company, and by its
acceptance hereof each Holder, hereby confirms that it is the intention of all
such parties that the Guarantee by such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law. To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of such
Guarantor under its Guarantee shall be limited to the maximum amount which,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, will result in the obligations of such Guarantor under its
Guarantee not constituting such fraudulent transfer or conveyance.
Section 10.05. Execution and Delivery of Guarantee.
(a) To evidence its Guarantee set forth in Section 10.01, each Initial
Guarantor hereby agrees that a notation of such Guarantee substantially in the
form attached as Exhibit E hereto will be endorsed by an Officer of such Initial
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
(b) Each Guarantor hereby agrees that its Guarantee set forth in
Section 10.01 hereof will remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
(c) If an Officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantor.
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(e) In the event a Restricted Subsidiary is required by Section 4.12
hereof to guarantee the Company's obligations under the Notes and this
Indenture, the Company shall cause such Restricted Subsidiary to comply with the
provisions of Section 4.12 hereof and this Article Ten, to the extent
applicable.
Section 10.06. Releases of Guarantors.
(a) A Guarantor will be deemed automatically and unconditionally
released and discharged from all of its obligations under its Guarantee without
any further action on the part of the Trustee or any Holder of the Notes:
(1) in connection with any sale of a majority of the Capital Stock of
a Guarantor to a Person that is not (either before or after giving effect
to such transaction) the Company or a Restricted Subsidiary, if the sale of
all such Capital Stock of that Guarantor complies with Sections 4.11 and
4.09 hereof;
(2) if the Company properly designates any Restricted Subsidiary that
is a Guarantor as an Unrestricted Subsidiary;
(3) if the Notes are discharged in accordance with the procedures set
forth in Article Eight or Article Eleven hereof;
provided that any such release and discharge pursuant to clauses (1) and (2)
above shall occur only to the extent that all obligations of such Guarantor
under all of its guarantees of, and under all of its pledges of assets or other
security interests which secure any, Indebtedness of the Company shall also
terminate at such time.
(b) Any Guarantor not released from its obligations under its
Guarantee as provided in this Section 10.06 will remain liable for the full
amount of principal of and interest and premium and Additional Interest, if any,
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article 10.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Notes as expressly provided for in this Indenture) as to all outstanding
Notes under this Indenture when:
(a) either
(1) all such Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or
paid or Notes whose payment has been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust as provided for in this Indenture) have
been delivered to the Trustee for cancellation, or
(2) all Notes not theretofore delivered to the Trustee for
cancellation (a) have become due and payable, (b) will become due and
payable at their Stated Maturity
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within one year, or (c) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Company;
(b) the Company or any Guarantor has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust an amount in United
States dollars, U.S. Government Obligations, or a combination thereof,
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, including principal of,
premium, if any, and accrued interest at such Maturity, Stated Maturity or
redemption date;
(c) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(d) the Company or any Guarantor has paid or caused to be paid all
other sums payable under this Indenture by the Company and any Guarantor;
(e) the Company has delivered to the Trustee an Officers' Certificate
and an opinion of independent counsel each stating that (1) all conditions
precedent under this Indenture relating to the satisfaction and discharge of
this Indenture have been complied with and (2) such satisfaction and discharge
will not result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company,
any Guarantor or any Subsidiary is a party or by which the Company, any
Guarantor or any Subsidiary is bound; and
(f) the Company has delivered irrevocable instructions to the Trustee
hereunder to apply any deposited money described in clause (b) above to the
payment of the Notes at Maturity, Stated Maturity or the redemption date, as the
case may be.
Section 11.02. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
(a) Subject to Section 11.03 hereof, all money and non-callable U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
11.02, the "Trustee") pursuant to Section 11.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium and
interest, but such money need not be segregated from other funds except to the
extent required by law.
(b) Notwithstanding the above, the Trustee shall pay to the Company
from time to time upon its request any cash or U.S. Government Obligations held
by it as provided in this Section 11.02 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect a satisfaction and discharge
under this Article Eleven.
Section 11.03. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium or
interest on any Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
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such trust; and the Holder of such Note shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, shall at
the expense of the Company cause to be published once, in The New York Times or
The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such money then remaining shall be repaid to the Company.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or any of its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 12.02. Notices.
(a) Any request, demand, authorization, note, waiver, consent or
communication by the Company, any Guarantor or the Trustee to the other is duly
given if in writing and delivered in person or mailed by first-class mail,
postage prepaid, addressed as follows or transmitted by facsimile transmission
to the following facsimile numbers:
If to the Company or any Guarantor:
INVACARE CORPORATION
One Invacare Way
Elyria, Ohio 44036
Facsimile: (440) 329-6975
Attention: General Counsel
with copies to:
CALFEE, HALTER & GRISWOLD LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
Facsimile: (216) 241-0816
Attention: Thomas A. Cicarella, Esq.
If to the Trustee:
WELLS FARGO BANK, N.A.
Corporate Trust Services
MACN9303-120
608 - 2nd Avenue South
Minneapolis, MN 55479
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Facsimile: (612) 667-9825
Attention: Invacare Account Manager
(b) The Company, any Guarantor or the Trustee by notice given to the
other in the manner prescribed above may designate additional or different
addresses for subsequent notices or communications.
(c) Any notice or communication given to a Holder shall be delivered
to the Holder, in accordance with the procedures of the Registrar, by electronic
transmission or by first class mail, postage prepaid, at the Holder's address as
it appears on the registration books of the Registrar and shall be sufficiently
given if so delivered within the time prescribed whether or not the underlying
provision of this Indenture permits delivery by electronic transmission or by
first class mail.
(d) Failure to deliver a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is delivered in the manner provided above, it is duly
given, whether or not received by the addressee; provided, however, that no
notice to the Trustee shall be deemed to be duly given unless and until the
Trustee actually receives same at the address given above.
(e) If the Company delivers a notice or communication to Holders, it
shall deliver a copy to the Trustee and each Registrar Agent.
Section 12.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
complied with.
Section 12.05. Statements Required in Certificate or Opinion.
(a) Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(i) a statement that each person making such Officers'
Certificate or Opinion of Counsel has, on behalf of the Company, read
such covenant or condition;
-96-
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(iii) a statement that, in the opinion of each such person, he or
she has made such examination or investigation as is necessary to
enable such person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
Section 12.06. Rules by Trustee, Registrar and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules for their
functions.
Section 12.07. No Recourse Against Others.
A director, officer, employee or shareholders, as such, of the Company
or any Guarantor shall not have any liability for any obligations of the Company
or the Guarantors under the Notes, this Indenture or the Guarantees or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
Section 12.08. Governing Law.
THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
RULES THEREOF.
Section 12.09. Consent to Jurisdiction.
Any legal suit, action or proceeding arising out of or based upon this
Indenture or the transactions contemplated hereby ("Related Proceedings") may be
instituted in the federal courts of the United States of America located in the
City of New York or the courts of the State of New York in each case located in
the City of New York (collectively, the "Specified Courts"), and each party
irrevocably submits to the non-exclusive jurisdiction of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or document
by mail to such party's address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that a Related Proceeding has been brought in an inconvenient forum.
Section 12.10. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
-97-
Section 12.11. Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors. All agreements of each Guarantor in this Indenture shall bind
its successors.
Section 12.12. Separability Clause.
In case any provision in this Indenture or the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 12.13. 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 12.14. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by the
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing, and may be given or obtained in connection with a purchase
of, or tender offer or exchange offer for, outstanding Notes; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company if made in the manner provided in this Section 12.14.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such witness, notary or officer the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) Notwithstanding anything to the contrary contained in this Section
12.14, the principal amount and serial numbers of Notes held by any Holder, and
the date of holding the same, shall be proved by the register of the Notes
maintained by the Registrar as provided in Section 2.04 hereof.
(d) If the Company shall solicit from the Holders of the Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a resolution of its Board of
Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a
-98-
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith or the date of the most recent list of
Holders forwarded to the Trustee prior to such solicitation pursuant to Section
2.06 hereof and not later than the date such solicitation is completed. If such
a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of the then outstanding Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the then outstanding Notes shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration or
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
(f) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so itself
with regard to all or any part of the principal amount of such Note or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
(g) For purposes of this Indenture, any action by the Holders which
may be taken in writing may be taken by electronic means or as otherwise
reasonably acceptable to the Trustee.
Section 12.15. Benefit of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent, any
Registrar and its successors hereunder, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 12.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
Section 12.17. Legal Holidays.
A "legal holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a legal holiday, the
action shall be taken on the next succeeding day that is not a legal holiday,
and, if the action to be taken on such date is a payment in respect of the
Notes, no interest shall accrue with respect to such payment for the intervening
period.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-99-
SIGNATURES
INVACARE CORPORATION, an Ohio
corporation
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President and COO
-100-
ADAPTIVE SWITCH LABORATORIES, INC.
INVACARE FLORIDA CORPORATION
INVACARE CREDIT CORPORATION
THE AFTERMARKET GROUP, INC.
THE HELIXX GROUP, INC.
CHAMPION MANUFACTURING INC.
HEALTHTECH PRODUCTS, INC.
INVACARE CANADIAN HOLDINGS, INC.
INVACARE INTERNATIONAL CORPORATION
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President and COO
-101-
KUSCHALL, INC.
ALTIMATE MEDICAL, INC.
INVACARE SUPPLY GROUP, INC.
INVACARE HOLDINGS, LLC
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President and COO
-102-
FREEDOM DESIGNS, INC.
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President
-103-
MEDBLOC, INC.
GARDEN CITY MEDICAL INC.
By: /s/ Bradford J. Patrick
------------------------------------
Name: Bradford J. Patrick
Title: Assistant Secretary
-104-
INVACARE FLORIDA HOLDINGS, LLC
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President
-105-
IN WITNESS WHEREOF, the undersigned, being duly authorized, has
executed this Indenture on behalf of the Trustee as of the date first above
written.
WELLS FARGO BANK, N.A.,
as Trustee
By: /s/ Lynn M. Steiner
------------------------------------
Name: Lynn M. Steiner
Title: Vice President
-106-
EXHIBIT A1
[Face of Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON) (THE "RESALE RESTRICTION TERMINATION DATE"), EXCEPT THAT THE
NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE
A1-1
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO
CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E)
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
A1-2
CUSIP _____
No. ________ $ _________
INVACARE CORPORATION
9 3/4% Senior Notes due 2015
Invacare Corporation, an Ohio corporation (the "Company"), which term
includes any successor under the Indenture hereinafter referred to, for value
received, promises to pay to CEDE & CO., or its registered assigns, the
principal sum of ___________ ($___________) UNITED STATES DOLLARS on February
15, 2015.
Interest Payment Dates: February 15 and August 15 of each year, commencing
August 15, 2007.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Date of Issuance: ___________________
A1-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
INVACARE CORPORATION, an Ohio
corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A1-4
(Form of Trustee's Certificate of Authentication)
This is one of the 9 3/4% Senior Notes due 2015 described in the
within-mentioned Indenture.
WELLS FARGO BANK, N.A., as Trustee
By:
------------------------------------
Authorized Signatory
Date:
-------------------------------
A1-5
[Reverse Side of Note]
INVACARE CORPORATION
9 3/4% Senior Notes due 2015
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal
amount of this Note at 9 3/4% per annum from the date hereof until maturity [and
shall pay Additional Interest, if any, as provided in the Registration Rights
Agreement, dated February 12, 2007+ referred below].* The Company shall pay
interest [and Additional Interest, if any,]* semi-annually in arrears on
February 15 and August 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes shall accrue from the most recent date to which interest
has been paid on the Notes (or one or more Predecessor Notes) or, if no interest
has been paid, from the date of original issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further that the first Interest Payment Date shall be
August 15, 2007++. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at 9 3/4% per annum; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest [and Additional Interest]*
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue on such payment for the intervening period.
[This Exchange Note was issued in connection with the Exchange Offer
pursuant to which the 9 3/4% Senior Notes due 2015 in like principal amount were
exchanged for Exchange Notes. The Exchange Notes rank pari passu in right of
payment with the Initial Notes. For any period in which the Initial Note
exchanged for this Exchange Note was outstanding, Additional Interest may be due
and owing on the Initial Note in connection with the Registration Rights
Agreement.]**
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest [and Additional Interest]*, if any) to the Persons in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the February 1 or August 1 immediately preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.13
of the Indenture with respect to defaulted interest. [The Company shall pay all
Additional Interest, if any, on the dates of its choosing and in the amounts set
forth in the Registration Rights Agreement.]* The Notes shall be payable as to
- ----------
+ For Additional Notes, insert the date of the Registration Rights Agreement
for those Additional Notes.
* Not to be included for Exchange Notes.
++ For Additional Notes, insert the appropriate interest payment date for
those Additional Notes.
** For Exchange Notes
* Not to be included for Exchange Notes.
A1-6
principal, premium, if any, and interest [and Additional Interest, if any,]* at
the office or agency of the Company maintained for such purpose, or, at the
option of the Company, payment of interest [and Additional Interest, if any,]*
may be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds shall be required with respect to principal of and interest,
premium, if any, on, all Global Notes and all other Notes the Holders of which
shall have provided wire transfer instructions to the Company or the Paying
Agent. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, Wells Fargo Bank, N.A., the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of February 12, 2007 (the "Indenture") among the Company, the Initial Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Indenture pursuant to which this Note is issued provides that an unlimited
amount of Additional Notes may be issued thereunder, subject to compliance with
the covenants therein.
5. Optional Redemption. (a) On or after February 15, 2011, the Company
may redeem all or a portion of the Notes, on not less than 30 nor more than 60
days' prior notice, in amounts of $1,000 or whole multiples of $1,000 in excess
thereof at the following redemption prices (expressed as percentages of the
principal amount), set forth below plus accrued and unpaid interest, if any,
thereon, to the applicable redemption date (subject to the rights of holders of
record on relevant record dates to receive interest due on an interest payment
date), if redeemed during the twelve-month period beginning on February 15 of
the years indicated below:
REDEMPTION
YEAR PRICE
---- ----------
2011................. 104.875%
2012................. 102.438%
2013 and thereafter.. 100.000%
(a) In addition, at any time and from time to time prior to February
15, 2010, the Company may use the net proceeds of one or more Public Equity
Offerings to redeem up to an aggregate of 35% of the aggregate principal amount
of Notes issued under the Indenture (including the principal amount of any
Additional Notes issued under the Indenture) at a redemption price equal to
109.750% of the aggregate principal amount of the Notes redeemed, plus accrued
and unpaid interest, if any, to the redemption date (subject to the rights of
holders of record on relevant record dates to receive interest due on an
interest payment date); provided that this redemption provision shall not be
applicable with respect to any transaction that results in a Change of Control.
At least 65% of the aggregate principal amount of Notes (including the principal
amount of any Additional Notes issued under the Indenture) must remain
outstanding immediately after the occurrence of such redemption. In order to
effect this redemption, the Company must deliver a notice of redemption no later
than 30 days after the closing of the related Public
A1-7
Equity Offering and must complete such redemption within 60 days of the closing
of the Public Equity Offering.
(b) At any time prior to February 15, 2011, the Company also may
redeem all or part of the Notes, upon not less than 30 nor more than 60 days'
written notice, at a redemption price equal to 100% of the principal amount of
the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Additional Interest, if any, to the redemption date, subject to the
rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date.
6. Mandatory Redemption. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
7. Repurchase at Option of Holders.
(a) Upon the occurrence of a Change of Control, each Holder may
require the Company to purchase such Holder's Notes in whole or in part in
amounts of $1,000 or whole multiples of $1,000 in excess thereof, at a purchase
price in cash in an amount equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase, pursuant to a
Change of Control Offer in accordance with the procedures set forth in the
Indenture.
(b) Under certain circumstances described in the Indenture, the
Company will be required to apply the proceeds of Asset Sales to the repayment
of the Notes and/or Pari Passu Indebtedness.
8. Selection and Notice of Redemption. If less than all of the Notes
are to be redeemed or purchased in an offer to purchase at any time, the Trustee
shall select the Notes to be redeemed or purchased among the Holders of the
Notes not more than 60 days prior to the redemption date in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate. Redemptions pursuant to Section 3.07(b) of the Indenture shall be
made on a pro rata basis or on as nearly a pro rata basis as practicable
(subject to the provisions of the Depositary). In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption. Notices of redemption may not be conditional. If any Note is to
be redeemed in part only, the notice of redemption that relates to that Note
will state the portion of the principal amount thereof to be redeemed. A new
Note in principal amount equal to the unredeemed portion of the original Note
will be issued in the name of the Holder thereof upon cancellation of the
original Note. Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest [and Additional
Interest]*, if any, shall cease to accrue on Notes or portions of them called
for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000 in
excess thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company is not required
to transfer or exchange any Note selected for redemption.
- ----------
* Not to be included for Exchange Notes.
A1-8
Also, the Company is not required to transfer or exchange any Note for a period
of 15 days before a selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note will be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. The Indenture or the Notes may
be amended or supplemented only as provided in the Indenture.
12. Defaults. In the case of an Event of Default arising from certain
events of bankruptcy, insolvency or reorganization specified in the Indenture,
with respect to the Company or any Significant Subsidiary, all outstanding Notes
will become due and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may, and the
Trustee at the request of such Holders shall, declare all unpaid principal of,
premium, if any, and accrued interest on all Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders of the Notes) and upon any such declaration, such principal,
premium, if any, and interest shall become due and payable immediately. The
Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding notice is in
their interest. The Holders of not less than a majority in aggregate principal
amount of the Notes outstanding by notice to the Trustee may on behalf of the
Holders of all outstanding Notes waive any past Default and its consequences
under the Indenture except a Default (1) in the payment of the principal of,
premium, if any, or interest on any Note (which may only be waived with the
consent of each Holder of Notes affected) or (2) in respect of a covenant or
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Note affected by such modification or amendment.
13. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee or
shareholders, as such, of the Company or any Guarantor shall not have any
liability for any obligations of the Company or the Guarantors under the Notes,
this Indenture or the Guarantees or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Holder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Notes.
15. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. [In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes issued on the Issue Date shall have all the rights set forth in
the Registration Rights Agreement dated as of February 12, 2007+, among the
Company, the Guarantors and the parties named on the signature pages thereof.]*
- ----------
+ For Additional Notes, insert the date of the Registration Rights Agreement
for those Additional Notes.
* Not to be included for Exchange Notes.
A1-9
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Designated Senior Debt. The Notes are "Designated Senior Debt"
(as defined in the Convertible Senior Subordinated Debentures Indenture) under
the Convertible Senior Subordinated Debentures Indenture.
19. Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to the
conflict of laws rules thereof.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
INVACARE CORPORATION
One Invacare Way
Elyria, Ohio 44036
Facsimile: (440) 329-6975
Attention: General Counsel
A1-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________________ to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Date:
----------------
Your Signature:
------------------------
(Sign exactly as your
name appears on the face
of this Note)
Signature Guarantee*:
---------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or 4.18 of the Indenture, check the appropriate box
below:
[ ] Section 4.11 [ ] Section 4.18
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.11 or Section 4.18 of the Indenture, state the
amount you elect to have purchased:
$_______________
Date:
----------------
Your Signature:
------------------------
(Sign exactly as your
name appears on the face
of this Note)
Tax Identification No.:
----------------
Signature Guarantee*:
---------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Amount of Decrease in Amount of Increase in Principal Amount
Principal Amount at Principal Amount at Maturity of this Global
Maturity of this Global Maturity of this Global Following such
Date of Exchange Note Note Decrease (or Increase)
- ---------------- ----------------------- ----------------------- -----------------------
A1-13
EXHIBIT A2
[Face of Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON) (THE "RESALE RESTRICTION TERMINATION DATE"), EXCEPT THAT THE
NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE
A2-1
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO
CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E)
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).] [REGULATION S TEMPORARY
GLOBAL NOTE LEGEND TO BE INCLUDED ONLY IN REGULATION S TEMPORARY GLOBAL NOTE].
A2-2
CUSIP _________
No. _____ $______________
INVACARE CORPORATION
9 3/4% Senior Notes due 2015
Invacare Corporation, an Ohio corporation (the "Company"), which term
includes any successor under the Indenture hereinafter referred to, for value
received, promises to pay to CEDE & CO., or its registered assigns, the
principal sum of ___________ ($___________) UNITED STATES DOLLARS on February
15, 2015.
Interest Payment Dates: February 15 and August 15 of each year, commencing
August 15, 2007.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Date of Issuance: _______________
A2-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
INVACARE CORPORATION, an Ohio
corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A2-4
(Form of Trustee's Certificate of Authentication)
This is one of the 9 3/4% Senior Notes due 2015 described in the
within-mentioned Indenture.
WELLS FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Authorized Signatory
Date:
---------------
A2-5
[Reverse Side of Note]
INVACARE CORPORATION
9 3/4% Senior Notes due 2015
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal
amount of this Note at 9 3/4% per annum from the date hereof until maturity [and
shall pay Additional Interest, if any, as provided in the Registration Rights
Agreement, dated February 12, 2007+ referred below].* The Company shall pay
interest [and Additional Interest, if any,]* semi-annually in arrears on
February 15 and August 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes shall accrue from the most recent date to which interest
has been paid on the Notes (or one or more Predecessor Notes) or, if no interest
has been paid, from the date of original issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further that the first Interest Payment Date shall be
August 15, 2007++. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at 9 3/4% per annum; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest [and Additional Interest]*
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue on such payment for the intervening period.
[This Exchange Note was issued in connection with the Exchange Offer
pursuant to which the 9 3/4% Senior Notes due 2015 in like principal amount were
exchanged for Exchange Notes. The Exchange Notes rank pari passu in right of
payment with the Initial Notes. For any period in which the Initial Note
exchanged for this Exchange Note was outstanding, Additional Interest may be due
and owing on the Initial Note in connection with the Registration Rights
Agreement.]**
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest [and Additional Interest]*, if any) to the Persons in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the February 1 or August 1 immediately preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.13
of the Indenture with respect to defaulted interest. [The Company shall pay all
Additional Interest, if any, on the dates of its choosing and in the amounts set
forth in the Registration Rights Agreement.]* The Notes shall be payable as to
- ----------
+ For Additional Notes, insert the date of the Registration Rights Agreement
for those Additional Notes.
* Not to be included for Exchange Notes.
++ For Additional Notes, insert the appropriate interest payment date for
those Additional Notes.
** For Exchange Notes
* Not to be included for Exchange Notes.
A2-6
principal, premium, if any, and interest [and Additional Interest, if any,]* at
the office or agency of the Company maintained for such purpose, or, at the
option of the Company, payment of interest [and Additional Interest, if any,]*
may be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds shall be required with respect to principal of and interest,
premium, if any, on, all Global Notes and all other Notes the Holders of which
shall have provided wire transfer instructions to the Company or the Paying
Agent. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, Wells Fargo Bank, N.A., the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of February 12, 2007 (the "Indenture") among the Company, the Initial Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Indenture pursuant to which this Note is issued provides that an unlimited
amount of Additional Notes may be issued thereunder, subject to compliance with
the covenants therein.
5. Optional Redemption. (a) On or after February 15, 2011, the Company
may redeem all or a portion of the Notes, on not less than 30 nor more than 60
days' prior notice, in amounts of $1,000 or whole multiples of $1,000 in excess
thereof at the following redemption prices (expressed as percentages of the
principal amount), set forth below plus accrued and unpaid interest, if any,
thereon, to the applicable redemption date (subject to the rights of holders of
record on relevant record dates to receive interest due on an interest payment
date), if redeemed during the twelve-month period beginning on February 15 of
the years indicated below:
YEAR REDEMPTION PRICE
- ---- ----------------
2011............................. 104.875%
2012............................. 102.438%
2013 and thereafter.............. 100.000%
(b) In addition, at any time and from time to time prior to February
15, 2010, the Company may use the net proceeds of one or more Public Equity
Offerings to redeem up to an aggregate of 35% of the aggregate principal amount
of Notes issued under the Indenture (including the principal amount of any
Additional Notes issued under the Indenture) at a redemption price equal to
109.750% of the aggregate principal amount of the Notes redeemed, plus accrued
and unpaid interest, if any, to the redemption date (subject to the rights of
holders of record on relevant record dates to receive interest due on an
interest payment date); provided that this redemption provision shall not be
applicable with respect to any transaction that results in a Change of Control.
At least 65% of the aggregate principal amount of Notes (including the principal
amount of any Additional Notes issued under the Indenture) must remain
outstanding immediately after the occurrence of such redemption. In order to
effect this redemption, the Company must deliver a notice of redemption no later
than 30 days after the closing of the related Public
A2-7
Equity Offering and must complete such redemption within 60 days of the closing
of the Public Equity Offering.
(c) At any time prior to February 15, 2011, the Company also may
redeem all or part of the Notes, upon not less than 30 nor more than 60 days'
written notice, at a redemption price equal to 100% of the principal amount of
the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Additional Interest, if any, to the redemption date, subject to the
rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date.
6. Mandatory Redemption. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
7. Repurchase at Option of Holders.
(a) Upon the occurrence of a Change of Control, each Holder may
require the Company to purchase such Holder's Notes in whole or in part in
amounts of $1,000 or whole multiples of $1,000 in excess thereof, at a purchase
price in cash in an amount equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase, pursuant to a
Change of Control Offer in accordance with the procedures set forth in the
Indenture.
(c) Under certain circumstances described in the Indenture, the
Company will be required to apply the proceeds of Asset Sales to the repayment
of the Notes and/or Pari Passu Indebtedness.
8. Selection and Notice of Redemption. If less than all of the Notes
are to be redeemed or purchased in an offer to purchase at any time, the Trustee
shall select the Notes to be redeemed or purchased among the Holders of the
Notes not more than 60 days prior to the redemption date in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate. Redemptions pursuant to Section 3.07(b) of the Indenture shall be
made on a pro rata basis or on as nearly a pro rata basis as practicable
(subject to the provisions of the Depositary). In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption. Notices of redemption may not be conditional. If any Note is to
be redeemed in part only, the notice of redemption that relates to that Note
will state the portion of the principal amount thereof to be redeemed. A new
Note in principal amount equal to the unredeemed portion of the original Note
will be issued in the name of the Holder thereof upon cancellation of the
original Note. Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest [and Additional
Interest]*, if any, shall cease to accrue on Notes or portions of them called
for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000 in
excess thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company is not required
to transfer or exchange any Note selected for redemption.
- ----------
* Not to be included for Exchange Notes.
A2-8
Also, the Company is not required to transfer or exchange any Note for a period
of 15 days before a selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note will be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. The Indenture or the Notes may
be amended or supplemented only as provided in the Indenture.
12. Defaults. In the case of an Event of Default arising from certain
events of bankruptcy, insolvency or reorganization specified in the Indenture,
with respect to the Company or any Significant Subsidiary, all outstanding Notes
will become due and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may, and the
Trustee at the request of such Holders shall, declare all unpaid principal of,
premium, if any, and accrued interest on all Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders of the Notes) and upon any such declaration, such principal,
premium, if any, and interest shall become due and payable immediately. The
Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding notice is in
their interest. The Holders of not less than a majority in aggregate principal
amount of the Notes outstanding by notice to the Trustee may on behalf of the
Holders of all outstanding Notes waive any past Default and its consequences
under the Indenture except a Default (1) in the payment of the principal of,
premium, if any, or interest on any Note (which may only be waived with the
consent of each Holder of Notes affected) or (2) in respect of a covenant or
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Note affected by such modification or amendment.
13. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee or
shareholders, as such, of the Company or any Guarantor shall not have any
liability for any obligations of the Company or the Guarantors under the Notes,
this Indenture or the Guarantees or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Holder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Notes.
15. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. [In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes issued on the Issue Date shall have all the rights set forth in
the Registration Rights Agreement dated as of February 12, 2007+, among the
Company, the Guarantors and the parties named on the signature pages thereof.]*
- ----------
+ For Additional Notes, insert the date of the Registration Rights Agreement
for those Additional Notes.
* Not to be included for Exchange Notes.
A2-9
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Designated Senior Debt. The Notes are "Designated Senior Debt"
(as defined in the Convertible Senior Subordinated Debentures Indenture) under
the Convertible Senior Subordinated Debentures Indenture.
19. Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to the
conflict of laws rules thereof.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
INVACARE CORPORATION
One Invacare Way
Elyria, Ohio 44036
Facsimile: (440) 329-6975
Attention: General Counsel
A2-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_____________________________________________________ to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Date:
---------------
Your Signature:
------------------------
(Sign exactly as your
name appears on the face
of this Note)
Signature Guarantee*:
---------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or 4.18 of the Indenture, check the appropriate box
below:
[ ] Section 4.11 [ ] Section 4.18
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.11 or Section 4.18 of the Indenture, state the
amount you elect to have purchased:
$_______________
Date:
----------------
Your Signature:
------------------------
(Sign exactly as your
name appears on the face
of this Note)
Tax Identification No.: ________________
Signature Guarantee*:
---------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Amount of Decrease in Amount of Increase in Principal Amount
Principal Amount at Principal Amount at Maturity of this Global
Maturity of this Global Maturity of this Global Following such
Date of Exchange Note Note Decrease (or Increase)
- ---------------- ----------------------- ----------------------- -----------------------
A2-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
INVACARE CORPORATION
One Invacare Way
Elyria, Ohio 44036
Facsimile: (440) 329-6975
Attention: General Counsel
WELLS FARGO BANK, N.A.
Corporate Trust Services
MACN9303-120
608 - 2nd Avenue South
Minneapolis, MN 55479
Facsimile: (612) 667-9825
Attention: Invacare Account Manager
Re: 9 3/4% Senior Notes due 2015
Reference is hereby made to the Indenture, dated as of February 12,
2007 (the "Indenture"), among Invacare Corporation, an Ohio corporation (the
"Company"), the Guarantors and Wells Fargo Bank, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount at maturity of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
[ ] 1. Check if Transferee will take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
[ ] 2. Check if Transferee will take delivery of a beneficial interest in the
Regulation S Temporary Global Note, the Regulation S Permanent Global Note or a
Definitive Note pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904
B-1
under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Permanent Global Note, the Regulation S Temporary Global Note
and/or the Definitive Note and in the Indenture and the Securities Act.
[ ] 3. Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Definitive Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit D to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Definitive Notes and in the Indenture and the Securities Act.
B-2
[ ] 4. Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ] Check if Transfer is Pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (A) OR (B)]
[ ] (A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
(iii) IAI Global Note (CUSIP __________); or
[ ] (B) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
[ ] (A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
(iii) IAI Global Note (CUSIP________); or
(iv) Unrestricted Global Note (CUSIP___________); or
[ ] (B) a Restricted Definitive Note; or
[ ] (C) an Unrestricted Definitive Note, in accordance with the terms of the
Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
INVACARE CORPORATION
One Invacare Way
Elyria, Ohio 44036
Facsimile: (440) 329-6975
Attention: General Counsel
WELLS FARGO BANK, N.A.
Corporate Trust Services
MACN9303-120
608 - 2nd Avenue South
Minneapolis, MN 55479
Facsimile: (612) 667-9825
Attention: Invacare Account Manager
Re: 9 3/4% Senior Notes due 2015
Reference is hereby made to the Indenture, dated as of February 12,
2007 (the "Indenture"), among Invacare Corporation, an Ohio corporation (the
"Company"), the Guarantors and Wells Fargo Bank, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
__________________________ (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount at maturity of $____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in
a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) [ ] Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount at maturity, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the
C-1
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [ ] Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) [ ] Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount at maturity, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] [ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI Global
Note with an equal principal amount at maturity, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
C-2
----------------------------------------
[Insert Name of Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
INVACARE CORPORATION
One Invacare Way
Elyria, Ohio 44036
Facsimile: (440) 329-6975
Attention: General Counsel
WELLS FARGO BANK, N.A.
Corporate Trust Services
MACN9303-120
608 - 2nd Avenue South
Minneapolis, MN 55479
Facsimile: (612) 667-9825
Attention: Invacare Account Manager
Re: 9 3/4% Senior Notes due 2015
Reference is hereby made to the Indenture, dated as of February 12,
2007 (the "Indenture"), among Invacare Operation, an Ohio corporation (the
"Company"), the Guarantors and Wells Fargo Bank, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount at maturity of:
(a) beneficial interest in a Global Note, or
(b) a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
D-1
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
----------------------------------------
[Insert Name of Accredited Investor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of February 12, 2007 (the "Indenture")
among Invacare Corporation (the "Company"), the Guarantors party thereto and
Wells Fargo Bank, N.A., as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium and Additional Interest, if any, and
interest on, the Notes, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on overdue principal of and interest on the
Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Company under the Indenture to the Holders or the Trustee all
in accordance with the terms of the Indenture and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders of
Notes and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article Ten of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Guarantee. Each Holder of a Note,
by accepting the same, agrees to and shall be bound by such provisions. This
Guarantee may be released in accordance with the Indenture without any further
act by any Holder.
Capitalized terms used but not defined herein have the meanings given
to them in the Indenture.
[NAME OF GUARANTOR(S)]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-1
EXHIBIT F
FORM OF GUARANTOR SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
__________, 20__, among __________ (the "Guaranteeing Subsidiary"), a subsidiary
of Invacare Corporation (or its permitted successor), an Ohio corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and Wells Fargo Bank, N.A., as trustee under the Indenture
referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of February 12, 2007, providing for the
issuance of 9 3/4% Senior Notes due 2015 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the other Guarantors, the Guaranteeing Subsidiary and the Trustee
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
(2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Guarantee and in the Indenture including but not limited to
Article 10 thereof.
(3) No Recourse Against Others. A director, officer, employee or
shareholders, as such, of the Guaranteeing Subsidiary shall not have any
liability for any obligations of the Company or the Guarantors under the
Securities, this Indenture or the Guarantees or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for issue of the Notes.
(4) NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.
(5) Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
F-1
(6) Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction hereof.
(7) The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary, the Company, and the
other Guarantors.
F-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ________, 20__
[GUARANTEEING SUBSIDIARY]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
INVACARE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[EXISTING GUARANTORS]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WELLS FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Authorized Signatory
F-3
EXHIBIT G
FORM OF INTERCOMPANY NOTE
_____________, 20[__]
FOR VALUE RECEIVED, _____________, a _____________ corporation (the
"Maker"), HEREBY PROMISES TO PAY ON DEMAND to the order of _____________ (the
"Holder") the principal sum of the aggregate unpaid principal amount of all
Loans (plus accrued interest thereon) at any time and from time to time made by
the Holder to the Maker (the "Loans").
All capitalized terms used herein that are defined in, or by reference
in, the Indenture, dated as of February 12, 2007 (the "Indenture"), among
Invacare Corporation, an Ohio corporation (the "Company"), the Guarantors and
Wells Fargo Bank, N.A., as trustee, have the meanings assigned to such terms
therein, or by reference therein, unless otherwise defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
Section 1.01 Interest: Prepayment. (a) The interest rate ("Interest
Rate") on each Loan shall be as from time to time agreed by the Holder and the
Maker, but in no event to exceed the maximum amount permitted by applicable law.
(b) The interest, if any, payable on each of the Loans shall accrue
from the date such Loan is made and, subject to Section 2.01, shall be payable
upon demand of the Holder.
(c) Subject to Section 2.01, any amounts hereunder may be repaid at
any time by the Maker.
Section 1.02 Subordination. To the extent provided in Section 2.01,
all Loans hereunder shall be subordinated in right of payment to the prior
payment in full in cash of all Obligations with respect to the Notes, in the
case of the Company, or the Guarantee, in the case of a Guarantor.
ARTICLE II
EVENTS OF DEFAULT
Section 2.01 Events of Default. If after the date of issuance of this
Loan an Event of Default has occurred and continues under the Indenture, then in
the event the Maker is the Company or any Guarantor, the amounts owing under the
Loans hereunder shall not be due and payable and shall not be paid until all
Obligations under the Notes, in the case of the Company, and the Guarantee, in
the case of a Guarantor, are paid in full in cash; provided, however, that if
such Event of Default has been waived, cured or rescinded, such amounts may be
paid. The Holder hereby agrees that if it receives any payments or distributions
on any Loan from the Company or any Guarantor which is not payable pursuant to
the prior sentence after any Event of Default has occurred, is continuing and
has not been waived, cured or rescinded, it will pay over and deliver forthwith
to the Company or such Guarantor, all such payments and distributions.
G-1
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendments, Etc. No amendment or waiver of any provision
of this intercompany note, or consent to depart herefrom is permitted at any
time for any reason, except with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes (including Additional Notes,
if any) then outstanding.
Section 3.02 Third Party Beneficiaries. The holders of the Notes or
any other Indebtedness ranking pari passu with the Notes or any Guarantees,
including without limitation, any Indebtedness incurred under the Senior Credit
Agreement, shall be third party beneficiaries to this intercompany note and upon
an Event of Default shall have the right to enforce the subordination provisions
of this intercompany note against the Holder.
Section 3.03 Headings. Article and Section headings in this
intercompany note are included for convenience of reference only and shall not
constitute a part of this intercompany note for any other purpose.
Section 3.04 Entire Agreement. This intercompany note sets forth the
entire agreement of the parties with respect to its subject matter and
supersedes all previous understandings, written or oral, in respect thereof.
Section 3.05 GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
Section 3.06 Waivers. The Maker hereby waives presentment, demand for
payment, notice of protest and all other demands and notices in connection with
the delivery, acceptance, performance or enforcement hereof.
[NAME OF MAKER]
By:
------------------------------------
G-2