Exhibit 4.1
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
TRANSDIGM INC.,
THE GUARANTORS named herein
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
------------------
INDENTURE
Dated as of December 3, 1998
------------------
up to $200,000,000
10-3/8% Senior Subordinated Notes due 2008
-------------------
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
310(a)(1)..................................................... 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.
(a)(4)..................................................... N.A.
(a)(5)..................................................... 7.10
(i)(b)..................................................... 7.10
(ii)(c).................................................... N.A.
311(a)........................................................ 7.11
(b)........................................................ 7.11
(iii)(c)................................................... N.A.
312(a)........................................................ 2.05
(b)........................................................ 12.03
(iv)(c).................................................... 12.03
313(a)........................................................ 7.06
(b)(2)..................................................... 7.07
(v)(c)..................................................... 7.06; 12.02
(vi)(d).................................................... 7.06
314(a)........................................................ 4.03; 12.02
(c)(1)..................................................... 12.04
(c)(2)..................................................... 12.04
(c)(3)..................................................... N.A.
(vii)(e)................................................... 11.05
(f)........................................................ NA
315(a)........................................................ 7.01
(b)........................................................ 7.05, 12.02
(A)(c)..................................................... 7.01
(d)........................................................ 7.01
(e)........................................................ 6.11
316(a)(last sentence)......................................... 2.09
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ 6.07
(B)(c)..................................................... 2.12
317(a)(1).................................................. 6.08
(a)(2)..................................................... 6.09
(b)........................................................ 2.04
318(a)..................................................... 12.01
(b)........................................................ N.A.
(c)........................................................ 12.01
- ----------
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
----
EXHIBITS
Exhibit A FORM OF 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 GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of December 3, 1998 among TransDigm Inc., a
Delaware corporation (the "Company"), the Guarantors (as herein defined) and
State Street Bank and Trust Company, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes:
I ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
A. SECTION 1.01. DEFINITIONS.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with or into the Company or
any of its Subsidiaries or that is assumed in connection with the acquisition of
assets from such Person and in each case not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Additional Interest" means all additional interest then owing
pursuant to Section 4 of the Registration Rights Agreement.
"Additional Notes" means up to $75.0 million in aggregate principal
amount of Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.09 hereof.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing. Notwithstanding the foregoing, no Person (other than the Company or
any Subsidiary of the Company) in whom a Securitization Entity makes an
Investment in connection with a Qualified Securitization Transaction shall be
deemed to be an Affiliate of the Company or any of its Subsidiaries solely by
reason of such investment.
"Agent" means any Registrar, Paying Agent or co-registrar.
"all or substantially all" shall have the meaning given such phrase
in the Revised Model Business Corporation Act.
"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 Cedel that apply to such transfer or
exchange.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company, or shall be merged
with or into the Company or any Restricted Subsidiary of the Company, or (b) the
acquisition by the Company or any Restricted Subsidiary of the Company of the
assets of any Person (other than a Restricted Subsidiary of the Company) other
than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other
transfer for value by the Company or any of its Restricted Subsidiaries
(including any Sale and Leaseback Transaction) to any Person other than the
Company or a Restricted Subsidiary of the Company of (a) any Capital Stock of
any Restricted Subsidiary of the Company or (b) any other property or assets of
the Company or any Restricted Subsidiary of the Company other than in the
ordinary course of business; provided, however, that Asset Sales or other
dispositions shall not include (i) a transaction or series of related
transactions for which the Company or its Restricted Subsidiaries receive
aggregate consideration of less than $1.0 million, (ii) the sale, lease,
conveyance, disposition or other transfer of all or substantially all of the
assets of the Company as permitted by Section 5.01 hereof or any disposition
that constitutes a Change of Control, (iii) the sale or discount, in each case
without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof, (iv)
disposals or replacements of obsolete equipment in the ordinary course of
business, (v) the sale, lease, conveyance, disposition or other transfer by the
Company or any Restricted Subsidiary of assets or property to one or more
Restricted Subsidiaries in connection with Investments permitted by Section 4.07
hereof or pursuant to any Permitted Investment, and (vi) sales of accounts
receivable, equipment and related assets (including contract rights) of the type
specified in the definition of "Qualified Securitization Transaction" to a
Securitization Entity for the fair market value thereof, including cash in an
amount at least equal to 75% of the fair market value thereof as determined in
accordance with GAAP. For the purposes of the preceding clause (vi) Purchase
Money Notes shall be deemed to be cash.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock, of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means: (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either S&P or Moody's; (iii) commercial
paper maturing no more than one year from the date of creation thereof and, at
the time of acquisition, having a rating of at least A-1 from S&P or at least
P-1 from Moody's; (iv) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia or any U.S. branch of a foreign bank having at the date
of acquisition thereof combined capital and surplus of not less than $250.0
million; (v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above; and
(vi) investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v) above.
"Cedel" means Cedel Bank, SA.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company or Holdings to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a "Group"), other than to the
Permitted Holders or their Related Parties or any Permitted Group; (ii) the
approval by the holders of Capital Stock of the Company or Holdings, as the case
may be, of any plan or proposal for the liquidation or dissolution of the
Company or Holdings, as the case may be (whether or not otherwise in compliance
with the provisions of this Indenture); (iii) any Person or Group (other than
the Permitted Holders or their Related Parties or any Permitted Group) shall
become the owner, directly or indirectly, beneficially or of record, of shares
representing more than 40% of the aggregate ordinary voting power represented by
the issued and outstanding Capital Stock of the Company or Holdings at a time
when the Permitted Holders and their Related Parties in the aggregate own a
lesser percentage of the aggregate ordinary voting power represented by such
issued and outstanding Capital Stock; or (iv) the first day on which a majority
of the members of the Board of Directors of the Company or Holdings are not
Continuing Directors.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Per son's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means TransDigm Inc., and any and all successors thereto.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of such Person's (i) Consolidated Net
Income; and (ii) to the extent Consolidated Net Income has been reduced thereby,
(A) all income taxes and foreign withholding taxes of such Person and its
Restricted Subsidiaries paid or accrued in accordance with GAAP for such period;
(B) Consolidated Interest Expense; (C) Consolidated Non-cash Charges less any
non-cash items increasing Consolidated Net Income for such period (other than
normal accruals in the ordinary course of business), all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in accordance
with GAAP; and (D) any cash charges resulting from the Transactions that are
incurred prior to the six month anniversary of the Issue Date.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four-Quarter Period") ending prior to the date of the
transaction giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio for which financial statements are available (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the
Four-Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
period of such calculation to (i) the incurrence or repayment of any
Indebtedness or the issuance of any Designated Preferred Stock of such Person or
any of its Restricted Subsidiaries (and the application of the proceeds thereof)
giving rise to the need to make such calculation and any incurrence or repayment
of other Indebtedness or the issuance or redemption of other Preferred Stock
(and the application of the proceeds thereof), other than the incurrence or
repayment of Indebtedness in the ordinary course of business for working capital
purposes pursuant to revolving credit facilities, occurring during the
Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment or issuance or redemption, as the case may be (and the
application of the proceeds thereof), had occurred on the first day of the
Four-Quarter Period; and (ii) any Asset Sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions and
other operating improvements that have occurred or are reasonably expected to
occur, all as determined in accordance with Regulation S-X promulgated under the
Securities Act) attributable to the assets which are the subject of the Asset
Acquisition or Asset Sale or other disposition and without regard to clause (iv)
of the definition of Consolidated Net Income) occurring during the Four-Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such Asset Sale or other disposition
or Asset Acquisition (including the incurrence or assumption of any such
Acquired Indebtedness) occurred on the first day of the Four-Quarter Period. If
such Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if such Person or
any Restricted Subsidiary of such Person had directly incurred or otherwise
assumed such other Indebtedness that was so guaranteed.
Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio": (i) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and (ii) notwithstanding clause
(i) of this paragraph, interest on Indebtedness determined on a fluctuating
basis, to the extent such interest is covered by agreements relating to Interest
Swap Obligations, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Interest Expense;
plus (ii) the product of (x) the amount of all cash dividend payments on any
series of Preferred Stock of such Person times (y) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local income tax rate of such Person,
expressed as a decimal; plus (iii) the product of (x) the amount of all dividend
payments on any series of Permitted Subsidiary Preferred Stock times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local income
tax rate of such Person,
expressed as a decimal; provided that with respect to any series of Preferred
Stock that was not paid cash dividends during such period but that is eligible
to be paid cash dividends during any period prior to the maturity date of the
Notes, cash dividends shall be deemed to have been paid with respect to such
series of Preferred Stock during such period for purposes of this clause (iii).
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum of, without duplication, (i) the aggregate of all cash
and non-cash interest expense with respect to all outstanding Indebtedness of
such Person and its Restricted Subsidiaries, including the net costs associated
with Interest Swap Obligations, for such period determined on a consolidated
basis in conformity with GAAP, but excluding amortization or write-off of debt
issuance costs, (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period; and (iii) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP.
"Consolidated Net Income" means, for any period, the aggregate net
income (or loss) of the Company and its Restricted Subsidiaries for such period
on a consolidated basis, determined in accordance with GAAP and without any
deduction in respect of Preferred Stock dividends; provided that there shall be
excluded therefrom, (i) gains and losses from Asset Sales (without regard to the
$1.0 million limitation set forth in the definition thereof) and the related tax
effects according to GAAP, (ii) gains and losses due solely to fluctuations in
currency values and the related tax effects according to GAAP, (iii) all
extraordinary, unusual or nonrecurring charges, gains and losses (including,
without limitation, all restructuring costs and any expense or charge related to
the repurchase of Capital Stock or warrants or options to purchase Capital
Stock), and the related tax effects according to GAAP, (iv) the net income (or
loss) of any Person acquired in a pooling of interests transaction accrued prior
to the date it becomes a Restricted Subsidiary of the Company or is merged or
consolidated with or into the Company or any Restricted Subsidiary of the
Company, (v) the net income (but not loss) of any Restricted Subsidiary of the
Company to the extent that the declaration of dividends or similar distributions
by that Restricted Subsidiary of the Company of that income is prohibited by
contract, operation of law or otherwise, (vi) the net loss of any Person, other
than a Restricted Subsidiary of the Company, (vii) the net income of any Person,
other than a Restricted Subsidiary of the Company, except to the extent of cash
dividends or distributions paid to the Company or a Restricted Subsidiary of the
Company by such Person, (viii) in the case of a successor to the referent Person
by consolidation or merger or as a transferee of the referent Person's assets,
any earnings of the successor corporation prior to such consolidation, merger or
transfer of assets, and (ix) any non-cash compensation charges, including any
arising from existing stock options resulting from any merger or
recapitalization transaction. For purposes of clause (iii)(w) of the first
paragraph of Section 4.07 hereof, Consolidated Net Income shall be reduced by
any cash dividends paid with respect to any series of Designated Preferred
Stock.
"Consolidated Noncash Charges" means, with respect to any Person,
for any period, the aggregate depreciation, amortization and other non-cash
charges and expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charges that require an accrual of or a reserve for cash payments for
any future period other than accruals or reserves associated with mandatory
repurchases of equity securities).
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company or Holdings who (i) was a member
of such Board of Directors on
the Issue Date; or (ii) was nominated for election or elected to such Board of
Directors by any of the Permitted Holders or with the approval of a majority of
the Continuing Directors who were members of such Board at the time of such
nomination or election.
"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.
"Credit Facilities" means one or more debt facilities (including,
without limitation, the New Credit Facility) or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) and/or letters of credit or banker's acceptances.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A-1 hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Noncash Consideration" means any noncash consideration
received by the Company or one of its Restricted Subsidiaries in connection with
an Asset Sale that is designated as Designated Noncash Consideration pursuant to
an Officers' Certificate executed by the principal executive officer and the
principal financial officer of the Company or such Restricted Subsidiary at the
time of such Asset Sale. Any particular item of Designated Noncash Consideration
will cease to be considered to be outstanding once it has been sold for cash or
Cash Equivalents. At the time of receipt of any Designated Noncash
Consideration, the Company shall deliver an Officers' Certificate to the Trustee
which shall state the fair market value of such Designated Noncash Consideration
and shall state the basis of such valuation, which shall be a report of a
nationally recognized investment banking, appraisal or accounting firm with
respect to the receipt in one or a series of related transactions of Designated
Noncash Consideration with a fair market value in excess of $10.0 million.
"Designated Preferred Stock" means Preferred Stock that is so
designated as Designated Preferred Stock, pursuant to an Officers' Certificate
executed by the principal executive officer and the principal financial officer
of the Company, on the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in clause (iii)(x) of the first
paragraph of Section 4.07 hereof.
"Designated Senior Debt" means (i) Indebtedness under or in respect
of the New Credit Facility and (ii) any other Indebtedness constituting Senior
Debt which, at the time of determination, has an aggregate principal amount of
at least $25.0 million and is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior Debt" by the Company.
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control), matures (excluding any maturity as the result
of an optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except, in each case, upon the occurrence of a
Change of Control) on or prior to the final maturity date of the Notes.
"Distribution Compliance Period" means as defined in Regulation S.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary of
the Company that is incorporated under the laws of the United States or any
state thereof or the District of Columbia.
"Equity Offering" means any offering of Qualified Capital Stock of
Holdings or the Company; provided that (i) in the event of an offering by
Holdings, Holdings contributes to the capital of the Company the portion of the
net cash proceeds of such offering necessary to pay the aggregate redemption
price (plus accrued interest to the redemption date) of the Notes to be redeemed
pursuant to Section 3.07(b) hereof; and (ii) in the event such equity offering
is not in the form of a public offering registered under the Securities Act, the
proceeds received by the Company directly or indirectly from such offering are
not less than $10.0 million.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the 10-3/8% Senior Subordinated Notes due
2008 to be issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement and, with respect to the Additional Notes, if any, issued under
this Indenture pursuant to Section 2.02, a registration rights agreement
substantially identical to the Registration Rights Agreement.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"fair market value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"Four-Quarter Period" has the meaning specified in the definition of
Consolidated Fixed Charge Coverage Ratio.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect from time to time.
"Global Note Legend" means the legend set forth in Section
2.06(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, in the form of
Exhibit A hereto, issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and for the payment of which the
United States pledges its full faith and credit.
"Guarantee" means (i) the guarantee of the Notes by Holdings and the
Domestic Restricted Subsidiaries of the Company; and (ii) the guarantee of the
Notes by any Restricted Subsidiary required under the terms of Section 4.17
hereof.
"Guarantor" means Holdings and any Restricted Subsidiary that incurs
a Guarantee; provided that upon the release and discharge of such Restricted
Subsidiary from its Guarantee in accordance with Section 11.06 hereof, such
Restricted Subsidiary shall cease to be a Guarantor.
"Hedging Agreement" means any agreement with respect to the hedging
of price risk associated with the purchase of commodities used in the business
of the Company and its Restricted Subsidiaries, so long as any such agreement
has been entered into in the ordinary course of business and not for purposes of
speculation.
"Holder" means a Person in whose name a Note is registered.
"Holdings" means TransDigm Holding Company.
"Holdings PIK Notes" means up to $20.0 million in aggregate
principal amount of Holdings' 12% pay-in-kind notes due 2009 plus any additional
pay-in-kind notes issued in respect of interest thereon in accordance with the
terms thereof.
"IAI Global Note" means the global Note in the form of Exhibit A-1
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, (i) all Obligations of such Person for borrowed money, (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all Obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business), (v) all
Obligations for the reimbursement of any obligor on any letter of credit,
banker's
acceptance or similar credit transaction, (vi) guarantees and other contingent
obligations in respect of Indebtedness referred to in clauses (i) through (v)
above and clause (viii) below, (vii) all Obligations of any other Person of the
type referred to in clauses (i) through (vi) which are secured by any Lien on
any property or asset of such Person, the amount of such Obligation being deemed
to be the lesser of the fair market value of such property or asset or the
amount of the Obligation so secured, (viii) all Obligations under currency
agreements and interest swap agreements of such Person, and (ix) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital 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
Capital Stock, such fair market value shall be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital
Stock. For the purposes of calculating the amount of Indebtedness of a
Securitization Entity outstanding as of any date, the face or notional amount of
any interest in receivables or equipment that is outstanding as of such date
shall be deemed to be Indebtedness but any such interests held by Affiliates of
such Securitization Entity shall be excluded for purposes of such calculation.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means up to $125.0 million in aggregate principal
amount of 10 3/8% Senior Subordinated Notes due 2008 of the Company issued on
the Issue Date for so long as such securities constitute Restricted Securities.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, that is not also a QIB.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit by
the Company and its Restricted Subsidiaries in accordance with normal trade
practices of the Company or such Restricted Subsidiary, as the case may be. If
the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Common
Stock of any direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Restricted Subsidiary
is no longer a Restricted Subsidiary of the Company (or, in the case of a
Restricted Subsidiary that is not Wholly Owned Restricted Subsidiary of the
Company, such Restricted Subsidiary has a minority interest that is held by an
Affiliate of the Company that is not a Restricted Subsidiary of the Company),
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Common Stock of such
Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal corporate
trust office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Marketable Securities" means publicly traded debt or equity
securities that are listed for trading on a national securities exchange and
that were issued by a corporation whose debt securities are rated in one of the
three highest rating categories by either S&P or Moody's.
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (i) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions); (ii) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements; and (iii)
appropriate amounts to be provided by the Company or any Restricted Subsidiary,
as the case may be, as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"New Credit Facility" means the Credit Agreement dated as of the
Issue Date among the Company, Holdings, the lenders party thereto in their
capacities as lenders thereunder and Bankers Trust Company, as administrative
agent, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder or adding Restricted
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Notes" means, collectively, the Initial Notes, the Additional
Notes, if any, and the Exchange Notes, treated as a single class of securities,
as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by 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
Sections 12.04 and 12.05 hereof.
"144A Global Note" means a global note in the form of Exhibit A-1
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Sections
12.04 and 12.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Permitted Business" means any business (including stock or assets)
that derives a majority of its revenues from the business engaged in by the
Company and its Restricted Subsidiaries on the Issue Date and/or activities that
are reasonably similar, ancillary or related to, or a reasonable
extension, development or expansion of, the businesses in which the Company and
its Restricted Subsidiaries are engaged on the Issue Date.
"Permitted Group" means any group of investors that is deemed to be
a "person" (as such term is used in Section 13(d)(3) of the Exchange Act) by
virtue of the Stockholders Agreements, as the same may be amended, modified or
supplemented from time to time, provided that no single Person (together with
its Affiliates), other than the Permitted Holders and their Related Parties, is
the "beneficial owner" (as such term is used in Section 13(d) of the Exchange
Act), directly or indirectly, of more than 50% of the voting power of the issued
and outstanding Capital Stock of the Company or Holdings (as applicable) that is
"beneficially owned" (as defined above) by such group of investors.
"Permitted Holders" means Odyssey Investment Partners Fund, LP, its
Affiliates and any general or limited partners of Odyssey Investment Partners
Fund, L.P.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Notes in an aggregate principal amount
not to exceed $125.0 million;
(ii) Indebtedness of the Company or any of its Restricted
Subsidiaries incurred pursuant to one or more Credit Facilities in an
aggregate principal amount at any time outstanding not to exceed $155.0
million, less: (A) the aggregate amount of Indebtedness of Securitization
Entities at the time outstanding, less (B) the amount of all mandatory
principal payments actually made by the Company or any such Restricted
Subsidiary since the Issue Date with the Net Cash Proceeds of an Asset
Sale in respect of term loans under a Credit Facility (excluding any such
payments to the extent refinanced at the time of payment), and (C) further
reduced by any repayments of revolving credit borrowings under a Credit
Facility with the Net Cash Proceeds of an Asset Sale that are accompanied
by a corresponding commitment reduction thereunder; provided that the
amount of Indebtedness permitted to be incurred pursuant to the Credit
Facilities in accordance with this clause (ii) shall be in addition to any
Indebtedness permitted to be incurred pursuant to the Credit Facilities in
reliance on, and in accordance with, clauses (vii), (xiii) and (xiv)
below;
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions therein;
(iv) Interest Swap Obligations of the Company or any of its
Restricted Subsidiaries covering Indebtedness of the Company or any of its
Restricted Subsidiaries; provided that any Indebtedness to which any such
Interest Swap Obligations correspond is otherwise permitted to be incurred
under this Indenture; and provided, further, that such Interest Swap
Obligations are entered into, in the judgment of the Company, to protect
the Company or any of its Restricted Subsidiaries from fluctuation in
interest rates on its outstanding Indebtedness;
(v) Indebtedness of the Company or any Restricted Subsidiary under
Hedging Agreements and Currency Agreements;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any such Restricted Subsidiaries; provided, however, that: (a) if the
Company is the obligor on such Indebtedness and the payee is a Restricted
Subsidiary that is not a Guarantor, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes and (b) (1) 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 and (2) any sale
or other transfer of any such Indebtedness to a Person that is not either
the Company or a Restricted Subsidiary thereof (other than by way of
granting a Lien permitted under this Indenture or in connection with the
exercise of remedies by a secured creditor) 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 (vi);
(vii) Indebtedness (including Capitalized Lease Obligations)
incurred by the Company or any of its Restricted Subsidiaries to finance
the purchase, lease or improvement of property (real or personal) or
equipment (whether through the direct purchase of assets or the Capital
Stock of any person owning such assets) in an aggregate principal amount
outstanding not to exceed $5.0 million;
(viii) Refinancing Indebtedness;
(ix) guarantees by the Company and its Restricted Subsidiaries of
each other's Indebtedness; provided that such Indebtedness is permitted to
be incurred under this Indenture and provided, further that in the event
such Indebtedness (other than Acquired Indebtedness) is incurred pursuant
to the Consolidated Fixed Charge Coverage Ratio, such guarantees are by
the Company or a Guarantor only;
(x) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification,
adjustment of purchase price, earn out or other similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or a Restricted Subsidiary of the Company, other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for the purpose
of financing such acquisition; provided that the maximum assumable
liability in respect of all such Indebtedness shall at no time exceed the
gross proceeds actually received by the Company and its Restricted
Subsidiaries in connection with such disposition;
(xi) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
of the Company in the ordinary course of business;
(xii) the incurrence by a Securitization Entity of Indebtedness in a
Qualified Securitization Transaction that is not recourse to the Company
or any Subsidiary of the Company (except for Standard Securitization
Undertakings);
(xiii) Indebtedness incurred by the Company or any of the Guarantors
in connection with the acquisition of a Permitted Business which
Indebtedness is incurred on or prior to September 30, 1999; provided that
on the date of the incurrence of such Indebtedness,
after giving effect to the incurrence thereof and the use of proceeds
therefrom, the Consolidated Fixed Charge Coverage Ratio of the Company
would be greater than the greater of (x) the Consolidated Fixed Charge
Coverage Ratio of the Company immediately prior to the incurrence of such
Indebtedness and (y) the Consolidated Fixed Charge Coverage Ratio of the
Company on the Issue Date;
(xiv) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount that does not exceed $10.0
million at any one time outstanding (which amount may, but need not, be
incurred in whole or in part under a Credit Facility);
(xv) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within five business days of
incurrence; and
(xvi) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, issued in the
ordinary course of business of the Company or such Restricted Subsidiary,
including, without limitation, in order to provide security for workers'
compensation claims or payment obligations in connection with
self-insurance or similar requirements in the ordinary course of business
and other Indebtedness with respect to workers' compensation claims,
self-insurance obligations, performance, surety and similar bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
of the Company in the ordinary course of business.
For purposes of determining compliance with Section 4.09 hereof, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (i) through (xvi)
above or is entitled to be incurred pursuant to the Consolidated Fixed Charge
Coverage Ratio provisions of Section 4.09 hereof, the Company shall, in its sole
discretion, classify (or later reclassify) such item of Indebtedness in any
manner that complies with Section 4.09 hereof. Accrual of interest, accretion or
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Capital Stock in the form of additional
shares of the same class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for
purposes of Section 4.09 hereof.
"Permitted Investments" means: (i) Investments by the Company or any
Restricted Subsidiary of the Company in any Restricted Subsidiary of the Company
(other than a Restricted Subsidiary of the Company in which an Affiliate of the
Company that is not a Restricted Subsidiary of the Company holds a minority
interest) (whether existing on the Issue Date or created thereafter) or any
Person (including by means of any transfer of cash or other property) if as a
result of such Investment such Person shall become a Restricted Subsidiary of
the Company (other than a Restricted Subsidiary of the Company in which an
Affiliate of the Company that is not a Restricted Subsidiary of the Company
holds a minority interest) or that will merge with or consolidate into the
Company or a Restricted Subsidiary of the Company and Investments in the Company
by any Restricted Subsidiary of the Company; (ii) investments in cash and Cash
Equivalents; (iii) loans and advances to employees and officers of the Company
and its Restricted Subsidiaries for bona fide business purposes in an aggregate
principal amount not to exceed $5.0 million at any one time outstanding; (iv)
Currency Agreements, Hedging Agreements and Interest Swap Obligations entered
into in the ordinary course
of business and otherwise in compliance with this Indenture; (v) Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or in good faith settlement of delinquent
obligations of such trade creditors or customers; (vi) Investments made by the
Company or its Restricted Subsidiaries as a result of consideration received in
connection with an Asset Sale made in compliance with Section 4.10 hereof; (vii)
Investments existing on the Issue Date; (viii) accounts receivable created or
acquired in the ordinary course of business; (ix) guarantees by the Company or a
Restricted Subsidiary of the Company permitted to be incurred under this
Indenture; (x) additional Investments having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (x) that
are at that time outstanding, not to exceed $10.0 million (with the fair market
value of each Investment being measured at the time made and without giving
effect to subsequent changes in value); (xi) any Investment by the Company or a
Subsidiary of the Company in a Securitization Entity or any Investment by a
Securitization Entity in any other Person in connection with a Qualified
Securitization Transaction; provided that any Investment in a Securitization
Entity is in the form of a Purchase Money Note or an equity interest; and (xii)
Investments the payment for which consists exclusively of Qualified Capital
Stock of the Company
"Permitted Liens" means the following types of Liens:
Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP;
statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen and repairmen and other Liens imposed by
law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have
been made in respect thereof;
Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, including any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
judgment Liens not giving rise to an Event of Default;
easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
any interest or title of a lessor under any Capitalized Lease
Obligation;
purchase money Liens to finance property or assets of the Company or
any Restricted Subsidiary of the Company acquired, constructed or improved
in the ordinary course of business; provided, however, that (A) the
related purchase money Indebtedness shall not exceed the cost of such
property or assets and shall not be secured by any property or assets of
the Company or any Restricted Subsidiary of the Company other than the
property and assets so acquired and (B) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(8) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;
(9) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(10) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(11) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(12) Liens securing Indebtedness under Currency Agreements and
Hedging Agreements;
(13) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary with respect to obligations that do
not in the aggregate exceed $5.0 million at any one time outstanding;
(14) Liens on assets transferred to a Securitization Entity or on
assets of a Securitization Entity, in either case incurred in connection
with a Qualified Securitization Transaction;
(15) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its
Restricted Subsidiaries;
(16) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(17) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods;
(18) Liens securing Acquired Indebtedness incurred in compliance
with Section 4.09;
(19) Liens placed upon assets of a Restricted Subsidiary of the
Company that is not a Guarantor to secure Indebtedness of such Restricted
Subsidiary that is otherwise permitted under this Indenture; and
(20) Liens existing on the Issue Date, together with any Liens
securing Indebtedness incurred in reliance on clause (viii) of the
definition of Permitted Indebtedness in order to refinance the
Indebtedness secured by Liens existing on the Issue Date; provided that
the Liens securing the refinancing Indebtedness shall not extend to
property other than that pledged under the Liens securing the Indebtedness
being refinanced.
"Permitted Subsidiary Preferred Stock" means any series of Preferred
Stock of a Restricted Subsidiary of the Company that constitutes Qualified
Capital Stock and has a fixed dividend rate, the liquidation value of all series
of which, when combined with the aggregate amount
of Indebtedness of the Company and its Restricted Subsidiaries incurred pursuant
to clause (xiv) of the definition of Permitted Indebtedness, does not exceed
$5.0 million.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Productive Assets" means assets (including Capital Stock) that are
used or usable by the Company and its Restricted Subsidiaries in Permitted
Businesses.
"Purchase Money Note" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Restricted Subsidiary of the Company in connection with a Qualified
Securitization Transaction, which note shall be repaid from cash available to
the Securitization Entity, other than amounts required to be established as
reserves pursuant to agreements, amounts paid to investors in respect of
interest, principal and other amounts owing to such investors and amounts paid
in connection with the purchase of newly generated receivables or newly acquired
equipment.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Securitization Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Restricted Subsidiaries pursuant to which the Company or any of its Subsidiaries
may sell, convey or otherwise transfer to (i) a Securitization Entity (in the
case of a transfer by the Company or any of its Restricted Subsidiaries); and
(ii) any other Person (in the case of a transfer by a Securitization Entity), or
may grant a security interest in any accounts receivable or equipment (whether
now existing or arising or acquired in the future) of the Company or any of its
Restricted Subsidiaries, and any assets related thereto including, without
limitation, all collateral securing such accounts receivable and equipment, all
contracts and contract rights and all guarantees or other obligations in respect
of such accounts receivable and equipment, proceeds of such accounts receivable
and equipment and other assets (including contract rights) which are customarily
transferred or in respect of which security interests are customarily granted in
connection with assets securitization transactions involving accounts receivable
and equipment.
"Recapitalization" means the recapitalization of Holdings
consummated on the Issue Date.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in
exchange or replacement for, such security or Indebtedness in whole or in part.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing, modification,
replacement, restatement, refunding, deferral, extension, substitution,
supplement, reissuance or resale of existing or future Indebtedness (other than
intercompany Indebtedness), including any additional Indebtedness incurred to
pay interest or premiums required by the instruments governing such existing or
future Indebtedness as in effect at the time of issuance thereof ("Required
Premiums") and fees in connection therewith; provided that any such event shall
not (i) directly or indirectly result in an increase in the aggregate principal
amount of Permitted Indebtedness (except to the extent such increase is a result
of a simultaneous incurrence of additional Indebtedness (A) to pay Required
Premiums and related fees or (B) otherwise permitted to be incurred under this
Indenture) of the Company and its Restricted Subsidiaries; and (ii) create
Indebtedness with a Weighted Average Life to Maturity at the time such
Indebtedness is incurred that is less than the Weighted Average Life to Maturity
at such time of the Indebtedness being refinanced, modified, replaced, renewed,
restated, refunded, deferred, extended, substituted, supplemented, reissued or
resold.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date by and among the Company, the Guarantors
and the Initial Purchasers.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note
in the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary global Note
in the form of Exhibit A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Party" with respect to any Permitted Holder means (i)(A)
any spouse, sibling, parent or child of such Permitted Holder; or (B) the estate
of any Permitted Holder during any period in which such estate holds Capital
Stock of the Company for the benefit of any Person referred to in clause (i)(A)
or (ii) any trust, corporation, partnership, limited liability company or other
entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially owning an interest of more than 50% of which consist of, or the
sole managing partner or managing member of which is, one or more Permitted
Holders and/or such other Persons referred to in the immediately preceding
clause (i).
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Debt; provided that if,
and for so long as, any Designated Senior Debt lacks such a representative, then
the Representative for such Designated Senior Debt shall at all times constitute
the holders of a majority in outstanding principal amount of such Designated
Senior Debt in respect of any Designated Senior Debt.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Subsidiary" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Entity" means a Wholly Owned Subsidiary of the
Company (or another Person in which the Company or any Subsidiary of the Company
makes an Investment and to which the Company or any Subsidiary of the Company
transfers accounts receivable or equipment and related assets) which engages in
no activities other than in connection with the financing of accounts receivable
or equipment and which is designated by the Board of Directors of the Company
(as provided below) as a Securitization Entity (i) no portion of the
Indebtedness or any other Obligations (contingent or otherwise) of which (A) is
guaranteed by the Company or any Restricted Subsidiary of the Company (excluding
guarantees of Obligations (other than the principal of, and interest on,
Indebtedness)) pursuant to Standard Securitization Undertakings; (B) is recourse
to or obligates the Company or any Restricted Subsidiary of the Company in any
way other than pursuant to Standard Securitization Undertakings; or (C) subjects
any property or asset of the Company or any Restricted Subsidiary of the
Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings; (ii) with
which neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement,
arrangement or understanding other than on terms no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons that are not Affiliates of the Company, other than fees
payable in the ordinary course of business in connection with servicing
receivables of such entity; and (iii) to which neither the Company nor any
Restricted Subsidiary of the Company has any obligations to maintain or 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 shall
be evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complied with foregoing
conditions.
"Senior Debt" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on any
Indebtedness of the Company or any Guarantor, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes or the
Guarantees, as the case may be. Without limiting the generality of the
foregoing, "Senior Debt" shall also include the principal of, premium, if any,
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on, and all other amounts owing in respect of, (x) all monetary obligations of
every nature of the Company or any Guarantor under the New Credit Facility,
including, without limitation, obligations (including guarantees thereof) to pay
principal and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities, (y) all Interest Swap Obligations (and guarantees
thereof), and (z) all obligations (and guarantees thereof) under Currency
Agreements and Hedging Agreements, in each case whether outstanding on the Issue
Date or thereafter incurred.
Notwithstanding the foregoing, "Senior Debt" shall not include (i)
any Indebtedness of the Company or a Guarantor to the Company or to a Subsidiary
of the Company, (ii) other than the Holdings PIK Notes, any Indebtedness to, or
guaranteed on behalf of, any shareholder, director, officer or employee of the
Company or any Subsidiary of the Company (including, without limitation, amounts
owed for compensation) other than a shareholder who is also a lender (or an
Affiliate of a lender) under the Credit Facilities (including the New Credit
Facility), (iii) Indebtedness to trade creditors and other amounts incurred in
connection with obtaining goods, materials or services, (iv) Indebtedness
represented by Disqualified Capital Stock, (v) any liability for federal, state,
local or other taxes owed or owing by the Company, (vi) that portion of any
Indebtedness incurred in violation of Section 4.09 hereof (but, as to any such
obligation, no such violation shall be deemed to exist for purposes of this
clause (vi) if the holder(s) of such obligation or their representative and the
Trustee shall have received an Officers' Certificate of the Company to the
effect that the incurrence of such Indebtedness does not (or in the case of
revolving credit indebtedness, that the incurrence of the entire committed
amount thereof at the date on which the initial borrowing thereunder is made
would not) violate such provisions of this Indenture), (vii) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of Title
11, United States Code, is without recourse to the Company, and (viii) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of the Company.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary," with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Securities Act.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts
receivable or equipment transaction.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholders Agreements" means those certain stockholders
agreements entered into in connection with the Recapitalization.
"Subsidiary," with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person; or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Tax Allocation Agreement" means the tax allocation agreement dated
as of the Issue Date between Holdings and the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Total Assets" means the total consolidated assets of the Company
and its Restricted Subsidiaries, as set forth on the Company's most recent
consolidated balance sheet.
"Trustee" means the party named as such above 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 in the form
of Exhibit A-1 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" of any Person means (i ) any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by
the Board of Directors of such Person in the manner provided below; and (ii) any
Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided that (i) the
Company certifies to the Trustee that such designation complies with Section
4.07 hereof; and (ii) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary only if (x) immediately after giving effect to
such designation, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.09
hereof and (y) immediately before and immediately after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced to
the Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"U.S. Subsidiary" means any Subsidiary of the Company that is
incorporated under the laws of the United States or any state thereof or the
District of Columbia.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding aggregate principal amount of such Indebtedness into (ii) the sum of
the total of the products obtained by multiplying (A) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof by (B) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Wholly
Owned Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than in the case of
a Restricted Subsidiary that is incorporated in a jurisdiction other than a
State in the United States or the District of Columbia, directors' qualifying
shares or an immaterial amount of shares required to be owned by other Persons
pursuant to applicable law) are owned by such Person or any Wholly Owned
Subsidiary of such Person.
B. SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Acceleration Notice" 6.02
"Affiliate Transaction" 4.11
"Authentication Order" 2.02
"Blockage Period" 10.04
"Change of Control Offer" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"Default Notice" 10.04
"Event of Default" 6.01
"incur" 4.09
"Legal Defeasance" 8.02
"Net Proceeds Offer" 4.10
"Net Proceeds Offer Amount" 4.10
"Net Proceeds Offer Payment Date" 4.10
"Net Proceeds Offer Trigger Date" 4.10
"Offer Period" 3.09
"Paying Agent" 2.03
"Purchase Date" 3.09
"Refunding Capital Stock" 4.07
"Registrar" 2.03
"Restricted Payments" 4.07
"Retired Capital Stock" 4.07
SECTION 1.03. Trust Indenture Act Definitions.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes and the Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the
Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
C. SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
A. (1) A TERM HAS THE MEANING ASSIGNED TO IT;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
B. (5) PROVISIONS APPLY TO SUCCESSIVE EVENTS AND TRANSACTIONS; AND
(6) 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 SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A 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 in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibits A-1 or A-2 attached hereto (including the Global Note
Legend thereon and the "Schedule of Exchanges of Interests in the Global Note"
or "Schedule of Exchanges of Interests in the Regulation S Temporary Global
Note," as applicable, attached thereto). Notes issued in definitive form shall
be substantially in the form of Exhibit A-1 attached hereto (but without the
Global Note Legend thereon and without the "Schedule of Exchanges of Interests
in the Global Note" or "Schedule of Exchanges of Interests in the Regulation S
Temporary Global Note," as applicable, 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 or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S 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, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Cedel Bank, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Distribution Compliance Period shall be
terminated upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Cedel Bank
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who
acquired an interest therein during the Distribution Compliance Period pursuant
to another exemption from registration under the Securities Act and who will
take delivery of a beneficial ownership interest in a 144A Global Note or an IAI
Global Note bearing a Private Placement Legend, all as contemplated by Section
2.06(g)(i) hereof), and (ii) an Officers' Certificate from the Company.
Following the termination of the Distribution Compliance 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 Cedel 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 Cedel Bank 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 Cedel Bank.
D. SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue in aggregate
principal amount not to exceed $200,000,000 (other than as provided in Section
2.07 hereof) in one or more series upon a written order of the Company in the
form of any Officers' Certificate. Each such written order shall specify the
amount of Notes to be authenticated, whether the Notes are to be Initial Notes,
Additional Notes or Exchange Notes and whether the Notes are to be issued as
Definitive Notes or Global Notes or such other information as the Trustee shall
reasonably request.
The Notes shall be issued only in fully registered form, without
coupons and only in denominations of $1,000 and any integral multiple thereof.
All Notes issued under this Indenture shall vote and consent together on all
matters as one class and no series of Notes will have the right to vote or
consent as a separate class on any matter.
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.
E. SECTION 2.03. REGISTRAR AND PAYING AGENT.
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 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.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to the Global Notes.
F. SECTION 2.04. 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 will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest (including Additional Interest, if any)
on the Notes, and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary 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 2.05. 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 ss. 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise comply with
TIA ss. 312(a).
G. SECTION 2.06. 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, the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes will be exchanged by the
Company for Definitive Notes if (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
Company within 90 days after the date of such notice from the Depositary or (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 Distribution Compliance Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
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:
(1) (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; PROVIDED, HOWEVER, THAT
PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD,
TRANSFERS OF BENEFICIAL INTERESTS IN THE TEMPORARY REGULATION
S GLOBAL NOTE MAY NOT BE MADE TO A U.S. PERSON OR FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON (OTHER THAN AN INITIAL
PURCHASER). BENEFICIAL INTERESTS IN ANY UNRESTRICTED GLOBAL
NOTE MAY BE TRANSFERRED TO PERSONS WHO TAKE DELIVERY THEREOF
IN THE FORM OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE. NO WRITTEN ORDERS OR INSTRUCTIONS SHALL BE REQUIRED TO
BE DELIVERED TO THE REGISTRAR TO EFFECT THE TRANSFERS
DESCRIBED IN THIS SECTION 2.06(B)(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 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Depositary 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) a written order from
a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(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 of the relevant Global Note(s) pursuant to
Section 2.06(h) 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 2.06(b)(ii) above and the
Registrar receives the following:
(A) (A) IF THE TRANSFEREE WILL TAKE DELIVERY IN THE FORM OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE, THEN THE TRANSFEROR MUST
DELIVER A CERTIFICATE IN THE FORM OF EXHIBIT B HERETO, INCLUDING THE
CERTIFICATIONS IN ITEM (1) THEREOF;
(B) if the transferee will take delivery in the form of a beneficial
interest in the Regulation S Temporary Global Note or the Regulation
S Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transferee will take delivery in the form of a beneficial
interest in the IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(2) (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 2.06(B)(II) ABOVE AND:
(A) (A) SUCH EXCHANGE OR TRANSFER IS EFFECTED PURSUANT TO THE
EXCHANGE OFFER IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT AND
THE HOLDER OF THE BENEFICIAL INTEREST TO BE TRANSFERRED, IN THE CASE OF AN
EXCHANGE, OR THE TRANSFEREE, IN THE CASE OF A TRANSFER, CERTIFIES IN THE
APPLICABLE LETTER OF TRANSMITTAL OR VIA THE DEPOSITARY'S BOOK-ENTRY SYSTEM
THAT IT IS NOT (1) A BROKER-DEALER, (2) A PERSON PARTICIPATING IN THE
DISTRIBUTION OF THE EXCHANGE NOTES OR (3) A PERSON WHO IS AN AFFILIATE (AS
DEFINED IN RULE 144) OF THE COMPANY;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(I) (1) IF THE HOLDER OF SUCH BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE PROPOSES TO EXCHANGE SUCH BENEFICIAL INTEREST FOR A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE, A CERTIFICATE FROM SUCH HOLDER IN
THE FORM OF EXHIBIT C HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (1)(A)
THEREOF; OR
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this 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.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to
the aggregate principal amount of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(B) (A) IF THE HOLDER OF SUCH BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE PROPOSES TO EXCHANGE SUCH BENEFICIAL INTEREST FOR A RESTRICTED
DEFINITIVE NOTE, A CERTIFICATE FROM SUCH HOLDER IN THE FORM OF EXHIBIT C
HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (2)(A) THEREOF;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A 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 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) 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 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(3) (II) NOTWITHSTANDING SECTIONS 2.06(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 TO (X) THE EXPIRATION OF THE
DISTRIBUTION COMPLIANCE PERIOD AND (Y) THE RECEIPT BY THE
REGISTRAR OF ANY CERTIFICATES REQUIRED PURSUANT TO RULE
903(C)(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. 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) (A) SUCH EXCHANGE OR TRANSFER IS EFFECTED PURSUANT TO THE
EXCHANGE OFFER IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT AND
THE HOLDER OF SUCH BENEFICIAL INTEREST, IN THE CASE OF AN EX CHANGE, OR
THE TRANSFEREE, IN THE CASE OF A TRANSFER, CERTIFIES IN THE APPLICABLE
LETTER OF TRANSMITTAL THAT IT IS NOT (1) A BROKER-DEALER, (2) A PERSON
PARTICIPATING IN THE DISTRIBUTION OF THE EXCHANGE NOTES OR (3) A PERSON
WHO IS AN AFFILIATE (AS DEFINED IN RULE 144) OF THE COMPANY;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(I) (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.
(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 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(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
2.06(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:
(B) (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 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;
(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) 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, 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 the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(I) (1) IF THE HOLDER OF SUCH DEFINITIVE NOTES PROPOSES TO EXCHANGE SUCH
NOTES FOR A BENEFICIAL INTEREST IN THE UNRESTRICTED GLOBAL NOTE, A
CERTIFICATE FROM SUCH HOLDER IN THE FORM OF EXHIBIT C HERETO,
INCLUDING THE CERTIFICATIONS IN ITEM (1)(C) THEREOF; OR
(2) if the Holder of such Definitive Notes proposes to transfer
such Notes to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this 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 the conditions of any of the subparagraphs in
this Section 2.06(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.
(4) (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 THE AGGREGATE PRINCIPAL AMOUNT OF ONE OF THE
UNRESTRICTED GLOBAL NOTES.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (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 2.06(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 his 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
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and registered
in the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) (A) IF THE TRANSFER WILL 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 will be made pursuant to Rule 903 or Rule 904,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(5) (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 IF:
(A) (A) SUCH EXCHANGE OR TRANSFER IS EFFECTED PURSUANT TO THE
EXCHANGE OFFER IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT AND
THE HOLDER, IN THE CASE OF AN EXCHANGE, OR THE TRANSFEREE, IN THE CASE OF
A TRANSFER, CERTIFIES IN THE APPLICABLE LETTER OF TRANSMITTAL THAT IT IS
NOT (1) A BROKER-DEALER, (2) A PERSON PARTICIPATING IN THE DISTRIBUTION OF
THE EXCHANGE NOTES OR (3) A PERSON WHO IS AN AFFILIATE (AS DEFINED IN RULE
144) OF THE COMPANY;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(I) (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 subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the
Securities Act.
(6) (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 the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.
(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.
(7) (I) PRIVATE PLACEMENT LEGEND.
(A) (A) EXCEPT AS PERMITTED BY SUBPARAGRAPH (B) BELOW, EACH GLOBAL
NOTE AND EACH DEFINITIVE NOTE (AND ALL NOTES ISSUED IN EXCHANGE THEREFOR
OR SUBSTITUTION THEREOF) SHALL BEAR THE LEGEND IN SUBSTANTIALLY THE
FOLLOWING FORM:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT
IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7)
UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR"), (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
THEREOF OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY
A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE
FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(B) (B) NOTWITHSTANDING THE FOREGOING, ANY GLOBAL NOTE OR DEFINITIVE
NOTE ISSUED PURSUANT TO SUBPARAGRAPHS (B)(IV), (C)(III), (C)(IV),
(D)(II), (D)(III), (E)(II), (E)(III) OR (F) TO THIS SECTION 2.06
(AND ALL NOTES ISSUED IN EXCHANGE THEREFOR OR SUBSTITUTION THEREOF)
SHALL NOT BEAR THE PRIVATE PLACEMENT LEG END.
(8) (II) GLOBAL NOTE LEGEND. EACH GLOBAL NOTE SHALL BEAR A LEGEND IN
SUBSTANTIALLY THE FOLLOWING FORM:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY."
(9) (III) 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
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount at maturity 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 will 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.
2. (I) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(1) (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 2.10,
3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid 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 the mailing of notice of redemption under
Section 3.03 hereof and ending at the close of business on such day, (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 2.06 to
effect a registration of transfer or exchange may be submitted by facsimile.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company 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 its expenses in replacing a Note.
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.
H. SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
I. SECTION 2.09. 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 2.10. Temporary Notes.
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 certificated 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.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
J. SECTION 2.11. 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 return
canceled Notes to the Company. Certification of the destruction of all canceled
Notes shall be delivered to the Company. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
K. SECTION 2.12. 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 Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company 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 2.13. 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 the
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
L. 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 45 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 redemption
price and (iv) the CUSIP numbers of the Notes to be redeemed.
SECTION 3.02. Selection of Notes to Be Redeemed.
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 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.
Notwithstanding the foregoing, if less than all of the Notes are to be redeemed
pursuant to Section 3.07(b) hereof, the Trustee shall select the Notes to be
redeemed among the Holders of the Notes pro rata basis or on as nearly a pro
rata basis as is practicable. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 45 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
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 to be redeemed. Notes and portions of Notes
selected shall be in amounts of $1,000 or whole multiples of $1,000. The
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed, including CUSIP
numbers, and shall state:
1. (A) THE REDEMPTION DATE;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee 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, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. Deposit of Redemption Price.
Prior to 10 a.m. Eastern Time on 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.
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 Person
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.
M. SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
N. SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as provided in Section 3.07(b) hereof, the Notes shall
not be redeemable at the Company's option prior to December 1, 2003. Thereafter,
the Notes shall be subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 45 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount
thereof) set forth below plus accrued and unpaid interest and Additional
Interest thereon, if any, to the applicable redemption date, if redeemed during
the twelve month period beginning on December 1 of the years indicated below:
Percentage
of Principal
Year Amount
---- ------
2003 105.188%
2004 103.458%
2005 101.729%
2006 and thereafter 100.000%
(b) Notwithstanding the foregoing, prior to December 1, 2001, the
Company may on any one or more occasions redeem up to 35% of the principal
amount of Notes issued under this Indenture at a redemption price of 110.375% of
the principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, thereon to the redemption date, with the net cash proceeds of
one or more Equity Offerings; provided that at least 65% of the aggregate
principal amount of Notes remains outstanding immediately after the occurrence
of such redemption (excluding Notes held by the Company and its Subsidiaries);
and provided further that such redemption shall occur within 120 days after the
consummation of any such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
O. SECTION 3.08. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
P. SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF NET PROCEEDS OFFER AMOUNT.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence a Net Proceeds Offer, it shall follow the
procedures specified below.
The Net Proceeds Offer shall remain open for a period of 20 Business
Days following its commencement or such longer period as may be required by
applicable law (the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the Company shall
purchase the Net Proceeds Offer Amount except as provided in Section 3.02 hereof
or, if less than the Net Proceeds Offer Amount has been tendered, all Notes
tendered in response to the Net Proceeds Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Net Proceeds Offer.
Upon the commencement of a Net Proceeds Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Net Proceeds
Offer. The Net Proceeds Offer shall be made to all Holders. The notice, which
shall govern the terms of the Net Proceeds Offer, shall state:
1. (A) THAT THE NET PROCEEDS OFFER IS BEING MADE
PURSUANT TO THIS SECTION 3.09 AND SECTION 4.10 HEREOF
AND THE LENGTH OF TIME THE NET PROCEEDS OFFER SHALL
REMAIN OPEN;
(b) the Net Proceeds Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Net Proceeds Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a portion of a Note purchased
pursuant to a Net Proceeds Offer may only elect to have such Note purchased in
integral multiples of $1,000;
(f) that Holders electing to have a Note purchased pursuant to any
Net Proceeds Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (based on amounts tendered and with such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary and,
except as provided in Section 3.02 hereof, the Net Proceeds Offer Amount of
Notes or portions thereof tendered pursuant to the Net Proceeds Offer, or if
less than the Net Proceeds Offer Amount has been tendered, all Notes or portions
thereof tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Net
Proceeds Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
To the extent that the provisions of any securities laws or
regulations conflict with this Section 3.09 or Section 4.10 hereof, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 3.09 or Section
4.10 hereof.
II. ARTICLE 4
COVENANTS
A. SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal amount,
premium, if any, and interest and Additional Interest, if any, on the Notes on
the dates and in the manner provided in the Notes. Principal amount, premium, if
any, and interest and Additional Interest, if any, shall be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal amount, premium, if any, and interest and Additional Interest,
if any, then due. The Company shall pay all Additional Interest, if any, in the
same manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it 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 period) at the same
rate to the extent lawful.
B. SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company 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.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.03. Reports.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Company shall furnish to the Holders
of Notes (i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
its consolidated Subsidiaries (showing in reasonable detail, either on the face
of the financial statements or in the footnotes thereto and in Management's
Discussion and Analysis of Financial Condition and Results of Operations, the
financial condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company) and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants and (ii) all current reports that would be required to be filed with
the SEC on Form 8-K if the Company were required to file such reports, in each
case, within the time periods specified in the SEC's rules and regulations. For
so long as Holdings is a Guarantor, the Company may satisfy its obligations in
this covenant by furnishing financial information relating to Holdings; provided
that the same is accompanied by consolidating information that explains in
reasonable detail the differences between the information relating to Holdings,
on the one hand, and the information relating to the Company and its Restricted
Subsidiaries on a stand-alone basis, on the other hand. In addition, following
consummation of the Exchange Offer, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such information
and reports with the SEC for public availability within the time periods
specified in the SEC's rules and regulations (unless the SEC will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. The Company shall at all times comply with
TIA ss. 314(a).
(b) For so long as any Notes remain outstanding, the Company and the
Guarantors shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.04. Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled 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
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of
his or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of 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. For
purposes of this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
C. SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
D. SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenants (to the extent that
it may lawfully do so) that it 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 it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it 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. Restricted Payments.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock; (2) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any
direct or indirect parent of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock; (3) make any
principal payment on, purchase, defease, redeem, prepay, decrease or otherwise
acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company
that is subordinate or junior in right of payment to the Notes; or (4) make any
Investment (other than Permitted Investments) (each of the foregoing actions set
forth in clauses (1), (2), (3) and (4) being referred to as a "Restricted
Payment"); if at the time of such Restricted Payment or immediately after giving
effect thereto: (i) a Default or an Event of Default shall have occurred and be
continuing; or (ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.09 hereof; or (iii) the aggregate amount of Restricted Payments
(including such proposed Restricted Payment) made subsequent to the Issue Date
(other than Restricted Payments made pursuant to clauses (2)(i), (3), (4), (5),
(6), (7), (8), (9) and (10) of the following paragraph) shall exceed the sum,
without duplication, of: (w) 50% of the cumulative Consolidated Net Income (or
if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss)
of the Company earned subsequent to the beginning of the first fiscal quarter
commencing after the Issue Date and on or prior to the date the Restricted
Payment occurs (the "Reference Date") (treating such period as a single
accounting period); plus (x) 100% of the aggregate net cash proceeds (including
the fair market value of property other than cash that would constitute
Marketable Securities or a Permitted Business) received by the Company from any
Person (other than a Subsidiary of the Company) from the issuance and sale
subsequent to the Issue Date and on or prior to the Reference Date of Qualified
Capital Stock of the Company; plus (y) without duplication of any amounts
included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of
any equity contribution received by the Company from a holder of the Company's
Capital Stock (excluding, in the case of clauses (iii)(x) and (y), any net cash
proceeds from an Equity Offering to the extent used to redeem the Notes in
compliance with the provisions set forth under Section 3.07(b) hereof); plus (z)
100% of the aggregate net proceeds (including the fair market value of property
other than cash that would constitute Marketable Securities or a Permitted
Business) of any (A) sale or other disposition of any Investment (other than a
Permitted Investment) made by the Company and its Restricted Subsidiaries or (B)
dividend from, or the sale of the stock of, an Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph shall not prohibit: (1) the payment of any
dividend or the consummation of any irrevocable redemption within 60 days after
the date of declaration of such dividend or notice of such redemption if the
dividend or payment of the redemption price, as the case may be, would have been
permitted on the date of declaration or notice; (2) if no Default or Event of
Default shall have occurred and be continuing or shall occur as a consequence
thereof, the acquisition of any shares of Capital Stock of the Company (the
"Retired Capital Stock") either (i) solely in exchange for shares of Qualified
Capital Stock of the Company (the "Refunding Capital Stock") or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the
Company and, in the case of subclause (i) of this clause (2), if immediately
prior to the retirement of the Retired Capital Stock the declaration and payment
of dividends thereon was permitted under clause (5) of this paragraph, the
declaration and payment of dividends on the Refunding Capital Stock in an
aggregate amount per year no greater than the aggregate amount of dividends per
annum that was declarable and payable on such Retired Capital Stock immediately
prior to such retirement; provided that at the time of the declaration of any
such dividends on the Refunding Capital Stock, no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence thereof;
(3) if no Default or Event of Default shall have occurred and be continuing, the
acquisition of any Indebtedness of the Company that is subordinate or junior in
right of payment to the Notes either (i) solely in exchange for shares of
Qualified Capital Stock of the Company, or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of (A) shares of Qualified Capital Stock of the Company or (B)
Refinancing Indebtedness; (4) if no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof, the
declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Capital Stock) issued after
the Issue Date (including, without limitation, the declaration and payment of
dividends on
Refunding Capital Stock in excess of the dividends declarable and payable
thereon pursuant to clause (2) of this paragraph); provided that, at the time of
such issuance, the Company, after giving effect to such issuance on a pro forma
basis, would have had a Consolidated Fixed Charge Coverage Ratio of at least 2.0
to 1.0; (5) payments to Holdings for the purpose of permitting, and in an amount
equal to the amount required to permit, Holdings to redeem or repurchase
Holdings' common equity or options in respect thereof, in each case in
connection with the repurchase provisions of employee stock option or stock
purchase agreements or other agreements to compensate management employees;
provided that all such redemptions or repurchases pursuant to this clause (5)
shall not exceed $2.0 million in any fiscal year (which amount shall be
increased by the amount of any net cash proceeds received from the sale since
the Issue Date of Capital Stock (other than Disqualified Capital Stock) to
members of the Company's management team that have not otherwise been applied to
the payment of Restricted Payments pursuant to the terms of clause (iii) of the
immediately preceding paragraph and by the cash proceeds of any "key-man" life
insurance policies which are used to make such redemptions or repurchases) since
the Issue Date; provided, further, that the cancellation of Indebtedness owing
to the Company from members of management of the Company or any of its
Restricted Subsidiaries in connection with any repurchase of Capital Stock of
Holdings (or warrants or options or rights to acquire such Capital Stock) will
not be deemed to constitute a Restricted Payment under this Indenture; (6) the
making of distributions, loans or advances to Holdings in an amount not to
exceed $1.0 million per annum in order to permit Holdings to pay the ordinary
operating expenses of Holdings (including, without limitation, directors' fees,
indemnification obligations, professional fees and expenses); (7) payments to
Holdings in respect of taxes pursuant to the terms of the Tax Allocation
Agreement as in effect on the Issue Date and as amended from time to time
pursuant to amendments that do not increase the amounts payable by the Company
or any of its Restricted Subsidiaries thereunder; (8) repurchases of Capital
Stock deemed to occur upon the exercise of stock options if such Capital Stock
represents a portion of the exercise price thereof; (9) other Restricted
Payments in an aggregate amount not to exceed $7.5 million; and (10)
distributions to Holdings to fund the Transactions subsequent to the issuance of
the Notes.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (iii) of the first
paragraph of this Section 4.07, (a) amounts expended pursuant to clauses (1) and
(2) (ii) shall be included in such calculation, provided such expenditures
pursuant to clause (5) shall not be included to the extent of the cash proceeds
received by the Company from any "key-man" life insurance policies and (b)
amounts expended pursuant to clauses (2)(i), (3), (4), (5), (6), (7), (8), (9)
and (10) shall be excluded from such calculation.
E. SECTION 4.08. DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or permit to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any Restricted Subsidiary of the Company to: (a)
pay dividends or make any other distributions on or in respect of its Capital
Stock; (b) make loans or advances or pay any Indebtedness or other obligation
owed to the Company or any other Restricted Subsidiary of the Company; or (c)
transfer any of its property or assets to the Company or any other Restricted
Subsidiary of the Company, except for such encumbrances or restrictions existing
under or by reason of: (1) applicable law; (2) this Indenture; (3)
non-assignment provisions of any contract or any lease of any Restricted
Subsidiary of the Company entered into in the ordinary course of business; (4)
any instrument governing Acquired Indebtedness, which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person or the properties or assets of the Person so acquired; (5)
the New Credit Facility; (6) agreements existing on the Issue Date to the extent
and in the manner such agreements are in effect on the Issue Date; (7)
restrictions on the transfer of assets subject to any Lien permitted under this
Indenture imposed by the holder of such Lien; (8) restrictions imposed by any
agreement to sell assets or Capital Stock permitted under this Indenture to any
Person pending the closing of such sale; (9) any agreement or instrument
governing Capital Stock of any Person that is acquired; (10) any Purchase Money
Note or other Indebtedness or other contractual requirements of a Securitization
Entity in connection with a Qualified Securitization Transaction; provided that
such restrictions apply only to such Securitization Entity; (11) other
Indebtedness or Permitted Subsidiary Preferred Stock outstanding on the Issue
Date or permitted to be issued or incurred under this Indenture; provided that
any such restrictions are ordinary and customary with respect to the type of
Indebtedness being incurred or Preferred Stock being issued (under the relevant
circumstances); (12) restrictions on cash or other deposits or net worth imposed
by customers under contracts entered into in the ordinary course of business;
and (13) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (l2) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Company's
Board of Directors (evidenced by a Board Resolution) whose judgment shall be
conclusively binding, not materially more restrictive with respect to such
dividend and other payment restrictions than those contained in the dividend or
other payment restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
F. SECTION 4.09. INCURRENCE OF INDEBTEDNESS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness); provided, however, that if no
Default or Event of Default shall have occurred and be continuing at the time or
as a consequence of the incurrence of any such Indebtedness, the Company and the
Guarantors may incur Indebtedness (including, without limitation, Acquired
Indebtedness) and Restricted Subsidiaries of the Company that are not Guarantors
may incur Acquired Indebtedness, in each case if on the date of the incurrence
of such Indebtedness, after giving effect to the incurrence thereof, the
Consolidated Fixed Charge Coverage Ratio of the Company would have been greater
than 2.0 to 1.0.
SECTION 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable 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 sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors); (ii) at least 75% of the consideration received
by the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be in the form of cash or Cash Equivalents and is received at the
time of such disposition; provided that the amount of: (a) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance
sheet) of the Company or any such Restricted Subsidiary (other than liabilities
that are by their terms subordinated to the Notes) that are assumed by the
transferee of any such assets; (b) any notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee that are
converted by
the Company or such Restricted Subsidiary into cash within 90 days of the
receipt thereof (to the extent of the cash received); and (c) any Designated
Noncash Consideration received by the Company or any of its Restricted
Subsidiaries in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Noncash Consideration received pursuant to
this clause (c) that is at that time outstanding, not to exceed 5% of Total
Assets at the time of the receipt of such Designated Noncash Consideration (with
the fair market value of each item of Designated Noncash Consideration being
measured at the time received and without giving effect to subsequent changes in
value), shall be deemed to be cash for the purposes of this provision or for
purposes of the second paragraph of this Section 4.10; and (iii) upon the
consummation of an Asset Sale, the Company shall apply, or cause such Restricted
Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within
365 days of receipt thereof either (A) to prepay any Senior Debt or Indebtedness
of a Restricted Subsidiary that is not a Guarantor and, in the case of any such
Indebtedness under any revolving credit facility, effect a corresponding
reduction in the availability under such revolving credit facility (or effect a
permanent reduction in the availability under such revolving credit facility
regardless of the fact that no prepayment is required in order to do so (in
which case no prepayment should be required)), (B) to reinvest in Productive
Assets, or (C) a combination of prepayment and investment permitted by the
foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any
such Net Cash Proceeds, the Company or such Restricted Subsidiary may
temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day
after an Asset Sale or such earlier date, if any, as the Board of Directors of
the Company or of such Restricted Subsidiary determines not to apply the Net
Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A),
(iii)(B) and (iii)(C) of the preceding sentence (each, a "Net Proceeds Offer
Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been
applied on or before such Net Proceeds Offer Trigger Date as permitted in
clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a
"Net Proceeds Offer Amount") shall be applied by the Company or such Restricted
Subsidiary to make an offer to purchase (the "Net Proceeds Offer ") on a date
(the "Net Proceeds Offer Payment Date") not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders on a
pro rata basis, the maximum amount of Notes that may be purchased with the Net
Proceeds Offer Amount at a price equal to 100% of the principal amount of the
Notes to be purchased, plus accrued and unpaid interest thereon, if any, to the
date of purchase; provided, however, that if at any time any non-cash
consideration (including any Designated Noncash Consideration) received by the
Company or any Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this Section 4.10. Notwithstanding the foregoing, if
a Net Proceeds Offer Amount is less than $10.0 million, the application of the
Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds
Offer may be deferred until such time as such Net Proceeds Offer Amount plus the
aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net
Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount
from all Asset Sales by the Company and its Restricted Subsidiaries aggregates
at least $10.0 million, at which time the Company or such Restricted Subsidiary
shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts
that have been so deferred to make a Net Proceeds Offer (the first date the
aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0
million or more shall be deemed to be a Net Proceeds Offer Trigger Date).
Notwithstanding the immediately preceding paragraph, the Company and
its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such
paragraph to the extent that: (i) at least 75% of the consideration for such
Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or
Marketable Securities; and (ii) such Asset Sale is for fair market value;
provided that any consideration consisting of cash, Cash Equivalents and/or
Marketable Securities received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be consummated under
this paragraph shall constitute Net Cash Proceeds subject to the provisions of
the preceding paragraph.
Notice of each Net Proceeds Offer will be mailed to the record
Holders as shown on the register of Holders within 30 days following the Net
Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with
the procedures set forth in Section 3.09 hereof. To the extent that the
aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than
the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds
Offer Amount for general corporate purposes or for any other purpose not
prohibited by this Indenture. Upon completion of any such Net Proceeds Offer,
the Net Proceeds Offer Amount shall be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 4.10, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.10 by virtue thereof.
G. SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
1. (A) THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS RESTRICTED
SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY, ENTER INTO OR PERMIT TO OCCUR ANY
TRANSACTION OR SERIES OF RELATED TRANSACTIONS (INCLUDING, WITHOUT
LIMITATION, THE PURCHASE, SALE, LEASE OR EXCHANGE OF ANY PROPERTY OR THE
RENDERING OF ANY SERVICE) WITH, OR FOR THE BENEFIT OF, ANY OF ITS
AFFILIATES (AN "AFFILIATE TRANSACTION"), OTHER THAN AFFILIATE TRANSACTIONS
ON TERMS THAT ARE NOT MATERIALLY LESS FAVORABLE THAN THOSE THAT MIGHT
REASONABLY HAVE BEEN OBTAINED IN A COMPARABLE TRANSACTION AT SUCH TIME ON
AN ARM'S-LENGTH BASIS FROM A PERSON THAT IS NOT AN AFFILIATE OF THE
COMPANY; PROVIDED, HOWEVER, THAT FOR A TRANSACTION OR SERIES OF RELATED
TRANSACTIONS WITH AN AGGREGATE VALUE OF $2.5 MILLION OR MORE, AT THE
COMPANY'S OPTION, EITHER: (I) A MAJORITY OF THE DISINTERESTED MEMBERS OF
THE BOARD OF DIRECTORS OF THE COMPANY SHALL DETERMINE IN GOOD FAITH THAT
SUCH AFFILIATE TRANSACTION IS ON TERMS THAT ARE NOT MATERIALLY LESS
FAVORABLE THAN THOSE THAT MIGHT REASONABLY HAVE BEEN OBTAINED IN A
COMPARABLE TRANSACTION AT SUCH TIME ON AN ARM'S-LENGTH BASIS FROM A PERSON
THAT IS NOT AN AFFILIATE OF THE COMPANY OR (II) THE BOARD OF DIRECTORS OF
THE COMPANY OR ANY SUCH RESTRICTED SUBSIDIARY PARTY TO SUCH AFFILIATE
TRANSACTION SHALL HAVE RECEIVED AN OPINION FROM A NATIONALLY RECOGNIZED
INVESTMENT BANKING, APPRAISAL OR ACCOUNTING FIRM THAT SUCH AFFILIATE
TRANSACTION IS ON TERMS NOT MATERIALLY LESS FAVORABLE THAN THOSE THAT
MIGHT REASONABLY HAVE BEEN OBTAINED IN A COMPARABLE TRANSACTION AT SUCH
TIME ON AN ARM'S-LENGTH BASIS FROM A PERSON THAT IS NOT AN AFFILIATE OF
THE COMPANY; AND PROVIDED, FURTHER, THAT FOR AN AFFILIATE TRANSACTION WITH
AN AGGREGATE VALUE OF $10.0 MILLION OR MORE THE BOARD OF DIRECTORS OF THE
COMPANY OR ANY SUCH RESTRICTED SUBSIDIARY PARTY TO SUCH AFFILIATE
TRANSACTION SHALL HAVE RECEIVED AN OPINION FROM A NATIONALLY RECOGNIZED
INVESTMENT BANKING, APPRAISAL OR ACCOUNTING FIRM THAT SUCH AFFILIATE
TRANSACTION IS ON TERMS NOT MATERIALLY LESS FAVORABLE THAN THOSE THAT
MIGHT REASONABLY HAVE BEEN OBTAINED IN A COMPARABLE TRANSACTION AT SUCH
TIME ON AN ARM'S-LENGTH BASIS FROM A PERSON THAT IS NOT AN AFFILIATE OF
THE COMPANY.
2. (B) THE RESTRICTIONS SET FORTH IN SECTION 4.11(A) HEREOF SHALL NOT APPLY
TO: (I) REASONABLE FEES AND COMPENSATION PAID TO, AND INDEMNITY PROVIDED
ON BEHALF OF, OFFICERS, DIRECTORS, EMPLOYEES OR CONSULTANTS OF THE COMPANY
OR ANY RESTRICTED SUBSIDIARY OF THE COMPANY AS DETERMINED IN GOOD FAITH BY
THE COMPANY'S BOARD OF DIRECTORS OR SENIOR MANAGEMENT; (II) TRANSACTIONS
EXCLUSIVELY BETWEEN OR AMONG THE COMPANY AND ANY OF ITS RESTRICTED
SUBSIDIARIES OR EXCLUSIVELY BETWEEN OR AMONG SUCH RESTRICTED SUBSIDIARIES,
PROVIDED SUCH TRANSACTIONS ARE NOT OTHERWISE PROHIBITED BY THIS INDENTURE;
(III) ANY AGREEMENT AS IN EFFECT AS OF THE ISSUE DATE OR ANY AMENDMENT
THERETO OR ANY TRANSACTION CONTEMPLATED THEREBY (INCLUDING PURSUANT TO ANY
AMENDMENT THERETO) IN ANY REPLACEMENT AGREEMENT THERETO SO LONG AS ANY
SUCH AMENDMENT OR REPLACEMENT AGREEMENT IS NOT MORE DISADVANTAGEOUS TO THE
HOLDERS IN ANY MATERIAL RESPECT THAN THE ORIGINAL AGREEMENT AS IN EFFECT
ON THE ISSUE DATE; (IV) RESTRICTED PAYMENTS OR PERMITTED INVESTMENTS
PERMITTED BY THIS INDENTURE; (V) TRANSACTIONS EFFECTED AS PART OF A
QUALIFIED SECURITIZATION TRANSACTION; (VI) THE PAYMENT OF CUSTOMARY ANNUAL
MANAGEMENT, CONSULTING AND ADVISORY FEES AND RELATED EXPENSES TO THE
PERMITTED HOLDERS AND THEIR AFFILIATES MADE PURSUANT TO ANY FINANCIAL
ADVISORY, FINANCING, UNDERWRITING OR PLACEMENT AGREEMENT OR IN RESPECT OF
OTHER INVESTMENT BANKING ACTIVITIES, INCLUDING, WITHOUT LIMITATION, IN
CONNECTION WITH ACQUISITIONS OR DIVESTITURES WHICH ARE APPROVED BY THE
BOARD OF DIRECTORS OF THE COMPANY OR SUCH RESTRICTED SUBSIDIARY IN GOOD
FAITH; (VII) PAYMENTS OR LOANS TO EMPLOYEES OR CONSULTANTS THAT ARE
APPROVED BY THE BOARD OF DIRECTORS OF THE COMPANY IN GOOD FAITH; (VIII)
SALES OF QUALIFIED CAPITAL STOCK; (IX) THE EXISTENCE OF, OR THE
PERFORMANCE BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES OF ITS
OBLIGATIONS UNDER THE TERMS OF, ANY STOCKHOLDERS AGREEMENT (INCLUDING ANY
REGISTRATION RIGHTS AGREEMENT OR PURCHASE AGREEMENT RELATED THERETO) TO
WHICH IT IS A PARTY AS OF THE ISSUE DATE AND ANY SIMILAR AGREEMENTS WHICH
IT MAY ENTER INTO THEREAFTER; PROVIDED, HOWEVER, THAT THE EXISTENCE OF, OR
THE PERFORMANCE BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES OF
OBLIGATIONS UNDER, ANY FUTURE AMENDMENT TO ANY SUCH EXISTING AGREEMENT OR
UNDER ANY SIMILAR AGREEMENT ENTERED INTO AFTER
THE ISSUE DATE SHALL ONLY BE PERMITTED BY THIS CLAUSE (IX) TO THE EXTENT
THAT THE TERMS OF ANY SUCH AMENDMENT OR NEW AGREEMENT ARE NOT
DISADVANTAGEOUS TO THE HOLDERS OF NOTES IN ANY MATERIAL RESPECT; AND (X)
TRANSACTIONS PERMITTED BY, AND COMPLYING WITH, THE PROVISIONS OF ARTICLE 5
HEREOF.
H. SECTION 4.12. LIENS.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets or any proceeds therefrom, of the Company or any of its Restricted
Subsidiaries whether owned on the Issue Date or acquired after the Issue Date,
in each case to secure Indebtedness or trade payables, unless: (i) in the case
of Liens securing Indebtedness that is expressly subordinate or junior in right
of payment to the Notes, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens and (ii) in all
other cases, the Notes are equally and ratably secured, except for (A) Liens
existing as of the Issue Date to the extent and in the manner such Liens are in
effect on the Issue Date, (B) Liens securing Senior Debt, (C) Liens securing the
Notes, (D) Liens of the Company or a Wholly Owned Restricted Subsidiary of the
Company on assets of any Restricted Subsidiary of the Company, (E) Liens
securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness that was secured by a Lien permitted under this Indenture and which
has been incurred in accordance with the provisions of this Indenture; provided,
however, that such Liens do not extend to or cover any categories of property or
assets of the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced, and (F) Permitted Liens.
SECTION 4.13. Conduct of Business.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any businesses a majority of whose revenues are not
derived from businesses that are the same or reasonably similar, ancillary or
related to, or a reasonable extension, development or expansion of, the
businesses in which the Company and its Restricted Subsidiaries are engaged on
the Issue Date.
I. SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
its Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
J. SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
1. (A) IF A CHANGE OF CONTROL OCCURS, EACH HOLDER WILL HAVE THE RIGHT TO
REQUIRE THAT THE COMPANY PURCHASE ALL OR A PORTION OF SUCH HOLDER'S NOTES
PURSUANT TO THE OFFER DESCRIBED BELOW (THE "CHANGE OF CONTROL OFFER"), AT
A PURCHASE PRICE EQUAL TO 101% OF THE PRINCIPAL AMOUNT THEREOF PLUS
ACCRUED INTEREST TO THE DATE OF PURCHASE. WITHIN 30 DAYS FOLLOWING THE
DATE UPON WHICH THE CHANGE OF CONTROL OCCURRED, THE COMPANY MUST SEND, BY
FIRST CLASS MAIL, A NOTICE TO EACH HOLDER, WHICH NOTICE SHALL GOVERN THE
TERMS OF THE CHANGE OF CONTROL OFFER. SUCH NOTICE SHALL STATE, AMONG OTHER
THINGS, THE PURCHASE DATE, WHICH MUST BE NO EARLIER THAN 30 DAYS NOR LATER
THAN 60 DAYS FROM THE DATE SUCH NOTICE IS MAILED, OTHER THAN AS MAY BE
REQUIRED BY LAW (THE "CHANGE OF CONTROL PAYMENT DATE").
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
applicable Trustee the Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder of
Notes so tendered the Change of Control Payment for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
Prior to the mailing of the notice referred to in Section 4.15(a)
above, but in any event within 30 days following any Change of Control, the
Company shall: (i) repay in full all Indebtedness under the New Credit Facility
and all other Senior Debt the terms of which require repayment upon a Change of
Control; or (ii) obtain the requisite consents under the New Credit Facility and
all such other Senior Debt to permit the repurchase of the Notes as provided
below. The Company's failure to comply with the covenant described in the
immediately preceding sentence shall constitute an Event of Default described in
clause (c) and not in clause (b) under "Events of Default" below.
(c) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Change of Control Offer.
To the extent that the Company complies with the provisions of any such
securities laws or regulations, the Company shall not be deemed to have breached
its obligations under this Section 4.15.
(d) Notwithstanding anything to the contrary in this Section 4.15,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 hereof and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
K. SECTION 4.16. NO SENIOR SUBORDINATED DEBT.
The Company shall not, and shall not permit any Restricted
Subsidiary that is a Guarantor to, incur or suffer to exist Indebtedness that is
senior in right of payment to the Notes or such Guarantor's Guarantee, as the
case may be, and subordinate in right of payment to any other Indebtedness of
the Company or such Guarantor, as the case may be. SECTION 4.17. Additional
Guarantees.
The Company shall not create or acquire another Domestic Restricted
Subsidiary unless such Domestic Restricted Subsidiary executes and delivers a
supplemental indenture to this Indenture, in form and substance reasonably
satisfactory to the Trustee, providing for a Guarantee by such Restricted
Subsidiary.
SECTION 4.18. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Restricted
Subsidiary of the Company) or permit any Person (other than the Company or a
Restricted Subsidiary of the Company) to own any Preferred Stock of any
Restricted Subsidiary of the Company, other than Permitted Subsidiary Preferred
Stock. The provisions of this Section 4.18 will not apply to any of the
Guarantors.
III. ARTICLE 5
SUCCESSORS
A. SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless (i) either: (a) the Company shall be the surviving or 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, transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity"): (x) shall be
a corporation organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia; and (y) shall expressly
assume, by supplemental indenture (in form and substance satisfactory to the
Trustee), executed and delivered to the Trustee, the due and punctual payment of
the principal of, and premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, this Indenture and the Registration
Rights Agreement on the part of the Company to be performed or observed; (ii)
except in the case of a merger of the Company with or into a Wholly Owned
Restricted Subsidiary of the Company and except in the case of a merger entered
into solely for the purpose of reincorporating the Company in another
jurisdiction, immediately after
giving effect to such transaction and the assumption contemplated by clause
(1)(b)(y) above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred in connection with or in respect of such transaction), the
Company or such Surviving Entity, as the case may be, shall be able to incur at
least $1.00 of additional Indebtedness pursuant to Section 4.09 hereof; (iii)
except in the case of a merger of the Company with or into a Wholly Owned
Restricted Subsidiary of the Company and except in the case of a merger entered
into solely for the purpose of reincorporating the Company in another
jurisdiction, immediately after giving effect to such transaction and the
assumption contemplated by clause (1)(b)(y) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred
and any Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing; and (iv) the
Company or the Surviving Entity shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company. However, transfer of assets between or among the Company and its
Restricted Subsidiaries will not be subject to the foregoing covenants.
B. SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, combination or merger, or any transfer of
all or substantially all of the assets of the Company in accordance with Section
5.01 hereof, in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of the Company
under this Indenture and the Notes with the same effect as if such surviving
entity had been named as such that, in the event of a conveyance, lease or
transfer, the conveyor, lessor or transferor will be released from the
provisions of this Indenture.
IV. ARTICLE 6
DEFAULTS AND REMEDIES
A. SECTION 6.01. EVENTS OF DEFAULT.
"Event of Defaults" are:
(a) the failure to pay interest on any Notes when the same becomes
due and payable if the default continues for a period of 30 days, whether or not
such payment shall be prohibited by Article 10 hereof;
(b) the failure to pay the principal on any Notes when such
principal becomes due and payable, at maturity, upon redemption or otherwise
(including the failure to make a payment to purchase Notes tendered pursuant to
a Change of Control Offer or a Net Proceeds Offer on the date specified for such
payment in the applicable offer to purchase), whether or not such payment shall
be prohibited by Article 10 hereof;
(c) a default in the observance or performance of any other covenant
or agreement contained herein if the default continues for a period of 30 days
after the Company receives written notice specifying the default (and demanding
that such default be remedied) from the Trustee or the Holders of at least 25%
of the outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.01 hereof, which will constitute an Event of
Default with such notice requirement but without such passage of time
requirement);
(d) the failure to pay at final stated maturity (giving effect to
any applicable grace periods and any extensions thereof) the principal amount of
any Indebtedness of the Company or any Restricted Subsidiary of the Company
(other than a Securitization Entity), which failure continues for at least 20
days, or the acceleration of the final stated maturity of any such Indebtedness,
which acceleration remains uncured and unrescinded for at least 20 days, if the
aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
final maturity or which has been accelerated (in each case with respect to which
the 20-day period described above has passed), aggregates $5.0 million or more
at any time;
(e) one or more judgments in an aggregate amount in excess of $5.0
million shall have been rendered against the Company or any of its Significant
Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a
period of 60 days after such judgment or judgments become final and
non-appealable;
(f) the Company or any of its Significant Subsidiaries pursuant to
or within the meaning of Bankruptcy Law:
(1) (I) COMMENCES A VOLUNTARY CASE,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors, or
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(2) (I) IS FOR RELIEF AGAINST THE COMPANY OR ANY OF ITS
SIGNIFICANT SUBSIDIARIES;
(ii) appoints a custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the property
of the Company or any of its Significant Subsidiaries; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries; and the order or decree remains unstayed and in
effect for 60 consecutive days.
B. SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (f) or (g) of Section 6.01 hereof with respect to the Company) occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare the principal of and accrued interest on
all the Notes to be due and payable immediately by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration" (the "Acceleration Notice"), and the same (i)
shall become immediately due and payable or (ii) if there are any amounts
outstanding under the New Credit Facility, shall become immediately due and
payable upon the first to occur of an acceleration under the New Credit Facility
or five Business Days after receipt by the Company and the Representative under
the New Credit Facility of such Acceleration Notice but only if such Event of
Default is then continuing. If an Event of Default specified in clause (f) or
(g) of Section 6.01 hereof with respect to the Company occurs and is continuing,
then all unpaid principal of, and premium, if any, and accrued and unpaid
interest on all the outstanding Notes shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances; and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (f) or (g) of Section 6.01 hereof, the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
C. SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Additional Interest, if any, on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
D. SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium and Additional Interest, if any, or
interest on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
at maturity of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority.
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 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.
E. SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
1. (A) THE HOLDER OF A NOTE GIVES TO THE TRUSTEE WRITTEN NOTICE OF A
CONTINUING EVENT OF DEFAULT;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-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 request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
F. SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium and Additional
Interest, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
G. SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal amount of, premium and Additional Interest, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
H. 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 other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, 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 amount, premium and Additional Interest, if any, and
interest, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal amount, premium
and Additional Interest, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
V. ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) (I) THE DUTIES OF THE TRUSTEE SHALL BE DETERMINED SOLELY
BY THE EXPRESS PROVISIONS OF THIS INDENTURE AND THE TRUSTEE NEED PERFORM
ONLY THOSE DUTIES THAT ARE SPECIFICALLY SET FORTH IN THIS INDENTURE AND NO
OTHERS, AND NO IMPLIED COVENANTS OR OBLIGATIONS SHALL BE READ INTO THIS
INDENTURE AGAINST THE TRUSTEE; AND
(ii ) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
2. (C) THE TRUSTEE MAY NOT BE RELIEVED FROM LIABILITIES FOR ITS OWN
NEGLIGENT ACTION, ITS OWN NEGLIGENT FAILURE TO ACT, OR ITS OWN WILLFUL
MISCONDUCT, EXCEPT THAT:
(1) (I) THIS PARAGRAPH DOES NOT LIMIT THE EFFECT OF PARAGRAPH
(B) OF THIS SECTION;
(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.
3. (D) WHETHER OR NOT THEREIN EXPRESSLY SO PROVIDED, EVERY PROVISION
OF THIS INDENTURE THAT IN ANY WAY RELATES TO THE TRUSTEE IS SUBJECT TO
PARAGRAPHS (A), (B), (C), (E) AND (F) OF THIS SECTION.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
4. (C) THE TRUSTEE MAY ACT THROUGH ITS ATTORNEYS AND AGENTS AND
SHALL NOT BE RESPONSIBLE FOR THE MISCONDUCT OR NEGLIGENCE OF ANY AGENT APPOINTED
WITH DUE CARE.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
B. SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
1. (A) THE TRUSTEE SHALL NOT BE DEEMED TO HAVE NOTICE OF ANY DEFAULT
OR EVENT OF DEFAULT UNLESS A RESPONSIBLE OFFICER OF THE TRUSTEE HAS ACTUAL
KNOWLEDGE THEREOF OR UNLESS WRITTEN NOTICE OF ANY EVENT WHICH IS IN FACT SUCH A
DEFAULT IS RECEIVED BY THE TRUSTEE AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE,
AND SUCH NOTICE REFERENCES THE NOTES AND THIS INDENTURE.
(b) If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 30 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Note, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
C. SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
D. SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Guarantors shall pay to the Trustee from time to
time such compensation for its acceptance of this Indenture and services
hereunder as the parties shall agree from time to time. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company and the Guarantors shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
The Company and the Guarantors shall indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company and the Guarantors or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company and the Guarantors promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company and the Guarantors need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Guarantors under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
To secure the Company's and the Guarantors' payment obligations in
this Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(f) or (g) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
1. (A) THE TRUSTEE FAILS TO COMPLY WITH SECTION 7.10 HEREOF;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
E. SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has 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 ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
F. SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
VI. ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof 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 on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, 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 (a) and (b) below, and to have satisfied all its 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 the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal amount of, premium, if any, and interest on such Notes when such
payments are due, (b) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
SECTION 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Notes 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 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 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(d) and 6.01(e) hereof shall not constitute Events of Default.
A. SECTION 8.04. CONDITIONS TO LEGAL 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:
In order to exercise either Legal Defeasance or Covenant Defeasance:
1. (A) THE COMPANY MUST IRREVOCABLY DEPOSIT WITH THE TRUSTEE, IN
TRUST, FOR THE BENEFIT OF THE HOLDERS, CASH IN UNITED STATES DOLLARS,
NON-CALLABLE GOVERNMENT SECURITIES, OR A COMBINATION THEREOF, IN SUCH AMOUNTS AS
WILL BE SUFFICIENT, IN THE OPINION OF A NATIONALLY RECOGNIZED FIRM OF
INDEPENDENT PUBLIC ACCOUNTANTS, TO PAY THE PRINCIPAL AMOUNT AT MATURITY OF,
PREMIUM AND ADDITIONAL INTEREST, IF ANY, AND INTEREST ON THE OUTSTANDING NOTES
ON THE STATED DATE FOR PAYMENT THEREOF OR ON THE APPLICABLE REDEMPTION DATE, AS
THE CASE MAY BE;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Notes pursuant to this Article 8
concurrently with such incurrence and the grant of a Lien to secure such
Indebtedness) or insofar as Sections 6.01(f) or 6.01(g) hereof is concerned, at
any time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under this Indenture (other
than a Default or an Event of Default resulting from the borrowing of funds to
be applied to such deposit and the grant of any Lien securing
such borrowing) or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that (A)
the trust funds will not be subject to any rights of holders of Senior Debt
including, without limitation, those arising under this Indenture, and (B) after
the 90th 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;
(g) 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 over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(i) the Company shall have paid or duly provided for payment of all
amounts then due to the Trustee pursuant to Section 7.07 hereof.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (b) above with respect to a Legal Defeasance need not be delivered if all
Notes not therefor delivered to the Trustee for cancellation (A) have become due
and payable, or (B) will become due and payable on the maturity date within one
year under arrangements satisfactory to the Trustee for giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
B. SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes 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 amount,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
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
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 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 Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(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. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights or registration of transfer or exchange of
the Notes, as expressly provided for in this Indenture) as to all outstanding
Notes when (i) either (a) all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, pursuant to an optional redemption
notice or otherwise, and the Company has irrevocably deposited or caused to be
deposited with the Trustee funds in an amount sufficient to pay and discharge
the entire Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on the Notes
to the date of deposit together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be; (ii) the Company has paid all other sums payable
under this Indenture by the Company; and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel stating that all
conditions precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
SECTION 8.07. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal, 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 on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
secured creditor, 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, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
C. SECTION 8.08. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes 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.
D. SECTION 8.09. SURVIVAL.
The Trustee's rights under this Article 8 shall survive termination
of this Indenture.
VII. ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
A. SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture, the
Guarantees or the Notes without the consent of any Holder of a Note:
1. (A) TO CURE ANY AMBIGUITY, DEFECT OR INCONSISTENCY;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes or to alter the provisions of Article 2 hereof (including
the related definitions) in a manner that does not materially adversely affect
any Holder;
(c) to provide for the assumption of the Company's or a Guarantor's
obligations to the Holders of the Notes by a successor to the Company or a
Guarantor pursuant to Article 5 or Article 11 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of the Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to provide for the issuance of Notes issued after the Issue Date
in accordance with the limitations set forth in this Indenture; or
(g) to allow any Guarantor to execute a supplemental indenture
and/or a Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee 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.
Except as provided below in this Section 9.02, this Indenture
(including Sections 3.09, 4.10 and 4.15 hereof), the Guarantees and the Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding voting as a single
class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on
the Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Guarantees or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes
are considered to be "outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee 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.
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.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder affected, an amendment or waiver under this Section 9.02 may not
(with respect to any Notes held by a non-consenting Holder):
2. (A) REDUCE THE PRINCIPAL AMOUNT OF NOTES WHOSE HOLDERS MUST
CONSENT TO AN AMENDMENT, SUPPLEMENT OR WAIVER;
(b) reduce the principal of or have the effect of changing the fixed
maturity of any Note or alter or waive any of the provisions with respect to the
redemption of the Notes, other than provisions relating to Sections 3.09, 4.10
or 4.15 hereof;
(c) reduce the rate of or change or have the effect of changing the
time for payment of interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount at maturity of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration;
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of or interest on the Notes;
(g) waive a redemption payment with respect to any Note, other than
a payment required by Section 3.09 or 4.10 hereof;
(h) after the Company's obligation to purchase Notes arises
thereunder, amend, change or modify in any material respect the obligation of
the Company to make and consummate a Change of Control Offer in the event of a
Change of Control or modify any of the provisions or definitions with respect
thereto after a Change of Control has occurred;
(i) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Notes in a manner
which adversely affects the Holders; or
(j) make any change in the foregoing amendment and waiver
provisions.
B. SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a amended or supplemental Indenture that complies with the TIA
as then in effect.
C. 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 waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
D. SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 12.04 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
VIII. ARTICLE 10
SUBORDINATION
A. SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each Holder of the Notes, by
its acceptance thereof, likewise covenants and agrees, (i) that all Notes shall
be issued subject to the provisions of this Article 10, and each Person holding
any Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all Obligations on the Notes by
the Company shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in cash
or Cash Equivalents of all Obligations on Senior Debt, including, without
limitation, the Company's obligations under the New Credit Facility and (ii)
that the subordination is for the benefit of, and shall be enforceable directly
by, the holders of Senior Debt, and that each holder of Senior Debt whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Notes.
SECTION 10.02. Intentionally Omitted.
SECTION 10.03. Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
the Notes, or for the acquisition of any of the Notes for cash or property or
otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of Senior Debt (pro
rata to such holders on the basis of the respective amounts of Senior Debt held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Debt.
(b) To the extent any payment of Senior Debt (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Senior Debt or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
has not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder when such
payment or distribution is prohibited by Section 10.03(a) hereof, such payment
or distribution shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt (pro rata to such holders on
the basis of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of the Senior Debt
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 10.03 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume the Company's
obligations hereunder in accordance with Article 5 hereof.
SECTION 10.04. Default on Designated Senior Debt.
1. (A) IF ANY DEFAULT OCCURS AND IS CONTINUING IN THE PAYMENT WHEN DUE,
WHETHER AT MATURITY, UPON ANY REDEMPTION, BY DECLARATION OR OTHERWISE, OF
ANY PRINCIPAL OF, INTEREST ON, UNPAID DRAWINGS FOR LETTERS OF CREDIT
ISSUED IN RESPECT OF, OR REGULARLY ACCRUING FEES WITH RESPECT TO, ANY
DESIGNATED SENIOR DEBT, NO PAYMENT OF ANY KIND OR CHARACTER SHALL BE MADE
BY OR ON BEHALF OF THE COMPANY OR ANY OTHER PERSON ON ITS OR THEIR BEHALF
WITH RESPECT TO ANY OBLIGATIONS ON THE NOTES OR TO ACQUIRE ANY OF THE
NOTES FOR CASH OR PROPERTY OR OTHERWISE. IN ADDITION, IF ANY OTHER EVENT
OF DEFAULT OCCURS AND IS CONTINUING WITH RESPECT TO ANY DESIGNATED SENIOR
DEBT, AS SUCH EVENT OF DEFAULT IS DEFINED IN THE INSTRUMENT CREATING OR
EVIDENCING SUCH DESIGNATED SENIOR DEBT, PERMITTING THE HOLDERS OF SUCH
DESIGNATED SENIOR DEBT THEN OUTSTANDING TO ACCELERATE THE MATURITY THEREOF
AND IF THE REPRESENTATIVE FOR THE RESPECTIVE ISSUE OF DESIGNATED SENIOR
DEBT GIVES NOTICE OF THE EVENT OF DEFAULT TO THE TRUSTEE (A "DEFAULT
NOTICE"), THEN, UNLESS AND UNTIL ALL EVENTS OF DEFAULT HAVE BEEN CURED OR
WAIVED OR HAVE CEASED TO EXIST OR THE TRUSTEE RECEIVES NOTICE THEREOF FROM
THE REPRESENTATIVE FOR THE RESPECTIVE ISSUE OF DESIGNATED SENIOR DEBT
TERMINATING THE BLOCKAGE PERIOD (AS DEFINED BELOW), DURING THE 180 DAYS
AFTER THE DELIVERY OF SUCH DEFAULT NOTICE (THE "BLOCKAGE PERIOD"), NEITHER
THE COMPANY NOR ANY OTHER PERSON ON ITS BEHALF SHALL (X) MAKE ANY PAYMENT
OF ANY KIND OR CHARACTER WITH RESPECT TO ANY OBLIGATIONS ON THE NOTES OR
(Y) ACQUIRE ANY OF THE NOTES FOR CASH OR PROPERTY OR OTHERWISE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL A
BLOCKAGE PERIOD EXTEND BEYOND 180 DAYS FROM THE DATE THE PAYMENT ON THE
NOTES WAS DUE AND ONLY ONE SUCH BLOCKAGE PERIOD MAY BE COMMENCED WITHIN
ANY 360 CONSECUTIVE DAYS. NO EVENT OF DEFAULT WHICH EXISTED OR WAS
CONTINUING ON THE DATE OF THE COMMENCEMENT OF ANY BLOCKAGE PERIOD WITH
RESPECT TO THE DESIGNATED SENIOR DEBT SHALL BE, OR BE MADE, THE BASIS FOR
COMMENCEMENT OF A SECOND BLOCKAGE PERIOD BY THE REPRESENTATIVE OF SUCH
DESIGNATED SENIOR DEBT WHETHER OR NOT WITHIN A PERIOD OF 360 CONSECUTIVE
DAYS, UNLESS SUCH EVENT OF DEFAULT SHALL HAVE BEEN CURED OR WAIVED FOR A
PERIOD OF NOT LESS THAN 90 CONSECUTIVE DAYS (IT BEING ACKNOWLEDGED THAT
ANY SUBSEQUENT ACTION, OR ANY BREACH OF ANY FINANCIAL COVENANTS FOR A
PERIOD
COMMENCING AFTER THE DATE OF COMMENCEMENT OF SUCH BLOCKAGE PERIOD THAT, IN
EITHER CASE, WOULD GIVE RISE TO AN EVENT OF DEFAULT PURSUANT TO ANY
PROVISIONS UNDER WHICH AN EVENT OF DEFAULT PREVIOUSLY EXISTED OR WAS
CONTINUING SHALL CONSTITUTE A NEW EVENT OF DEFAULT FOR THIS PURPOSE).
2. (B) IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, ANY PAYMENT SHALL BE
RECEIVED BY THE TRUSTEE OR ANY HOLDER WHEN SUCH PAYMENT IS PROHIBITED BY
SECTION 10.04(A) HEREOF, SUCH PAYMENT SHALL BE HELD IN TRUST FOR THE
BENEFIT OF, AND SHALL BE PAID OVER OR DELIVERED TO, THE HOLDERS OF SENIOR
DEBT (PRO RATA TO SUCH HOLDERS ON THE BASIS OF THE RESPECTIVE AMOUNT OF
SENIOR DEBT HELD BY SUCH HOLDERS) OR THEIR RESPECTIVE REPRESENTATIVES, AS
THEIR RESPECTIVE INTERESTS MAY APPEAR. THE TRUSTEE SHALL BE ENTITLED TO
RELY ON INFORMATION REGARDING AMOUNTS THEN DUE AND OWING ON THE SENIOR
DEBT, IF ANY, RECEIVED FROM THE HOLDERS OF SENIOR DEBT (OR THEIR
REPRESENTATIVES) OR, IF SUCH INFORMATION IS NOT RECEIVED FROM SUCH HOLDERS
OR THEIR REPRESENTATIVES, FROM THE COMPANY AND ONLY AMOUNTS INCLUDED IN
THE INFORMATION PROVIDED TO THE TRUSTEE SHALL BE PAID TO THE HOLDERS OF
SENIOR DEBT.
Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 hereof or to pursue any rights or remedies
hereunder; provided that all Senior Debt thereafter due or declared to be due
shall first be paid in full in cash or Cash Equivalents before the Holders are
entitled to receive any payment of any kind or character with respect to
Obligations on the Notes.
B. SECTION 10.05. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
C. SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of
any Obligations with respect to the Notes at a time when such payment is
prohibited by Section 10.03 or 10.04 hereof, such payment shall be held by the
Trustee or such Holder, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which such Senior Debt may have been issued, as
their respective interests may appear, for application to the
payment of all Obligations with respect to Senior Debt remaining unpaid to the
extent necessary to pay such Obligations in full in cash or Cash Equivalents in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
D. SECTION 10.07. NOTICE BY COMPANY.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article 10 (although the failure to give any such notice shall not affect the
subordination provision of this Article 10). Regardless of anything to the
contrary contained in this Article 10 or elsewhere in this Indenture, the
Trustee shall not be charged with knowledge of the existence of any default or
event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing from the Company, or from a
holder of Senior Debt or a Representative therefor, together with proof
satisfactory to the Trustee of such holding of Senior Debt or of the authority
of such Representative, and, prior to the receipt of any such written notice,
the Trustee shall be entitled to assume that no such facts exist.
E. SECTION 10.08. SUBROGATION.
1. SUBJECT TO THE PAYMENT IN FULL IN CASH OR CASH EQUIVALENTS OF ALL SENIOR
DEBT, THE HOLDERS OF THE NOTES SHALL BE SUBROGATED TO THE RIGHTS OF THE
HOLDERS OF SENIOR DEBT TO RECEIVE PAYMENTS OR DISTRIBUTIONS OF CASH,
PROPERTY OR SECURITIES OF THE COMPANY APPLICABLE TO THE SENIOR DEBT UNTIL
THE NOTES SHALL BE PAID IN FULL; AND, FOR THE PURPOSES OF SUCH
SUBROGATION, NO SUCH PAYMENTS OR DISTRIBUTIONS TO THE HOLDERS OF THE
SENIOR DEBT BY OR ON BEHALF OF THE COMPANY OR BY OR ON BEHALF OF THE
HOLDERS BY VIRTUE OF THIS ARTICLE 10 WHICH OTHERWISE WOULD HAVE BEEN MADE
TO THE HOLDERS SHALL, AS BETWEEN THE COMPANY AND THE HOLDERS OF THE NOTES,
BE DEEMED TO BE A PAYMENT BY THE COMPANY TO OR ON ACCOUNT OF THE SENIOR
DEBT, IT BEING UNDERSTOOD THAT THE PROVISIONS OF THIS ARTICLE 10 ARE AND
ARE INTENDED SOLELY FOR THE PURPOSE OF DEFINING THE RELATIVE RIGHTS OF THE
HOLDERS OF THE NOTES, ON THE ONE HAND, AND THE HOLDERS OF THE SENIOR DEBT,
ON THE OTHER HAND.
F. SECTION 10.09. RELATIVE RIGHTS.
Nothing contained in this Article 10 or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of the
Company other than the holders of the Senior Debt, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 10 of the holders of Senior Debt in respect
of cash, property or securities of the Company received upon the exercise of any
such remedy. Upon any payment or distribution of assets or securities of the
Company referred to in this Article 10, the Trustee, subject to the provisions
of Sections 7.01 and 7.02 hereof, and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which any
liquidation, dissolution, winding-up or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee or
agent or other Person making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this
Article 10. Nothing in this Article 10 shall apply to the claims of, or payments
to, the Trustee in its capacity as such under or pursuant to Section 7.07
hereof. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder of any Senior
Debt (or a trustee on behalf of, or other representative of, such holder) to
establish that such notice has been given by a holder of such Senior Debt or a
trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article 10, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
G. SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
1. (A) NO RIGHT OF ANY PRESENT OR FUTURE HOLDER OF ANY SENIOR DEBT TO ENFORCE
SUBORDINATION AS HEREIN PROVIDED SHALL AT ANY TIME IN ANY WAY BE
PREJUDICED OR IMPAIRED BY ANY ACT OR FAILURE TO ACT ON THE PART OF THE
COMPANY OR BY ANY ACT OR FAILURE TO ACT BY ANY SUCH HOLDER, OR BY ANY
NON-COMPLIANCE BY THE COMPANY WITH THE TERMS, PROVISIONS AND COVENANTS OF
THIS INDENTURE, REGARDLESS OF ANY KNOWLEDGE THEREOF ANY SUCH HOLDER MAY
HAVE OR BE OTHERWISE CHARGED WITH.
2. (B) WITHOUT LIMITING THE GENERALITY OF SUBSECTION (A) OF THIS SECTION
10.10, THE HOLDERS OF SENIOR DEBT MAY, AT ANY TIME AND FROM TIME TO TIME,
WITHOUT THE CONSENT OF OR NOTICE TO THE TRUSTEE OR THE HOLDERS OF THE
NOTES, WITHOUT INCURRING RESPONSIBILITY TO THE HOLDERS OF THE NOTES AND
WITHOUT IMPAIRING OR RELEASING THE SUBORDINATION PROVIDED IN THIS ARTICLE
10 OR THE OBLIGATIONS HEREUNDER OF THE HOLDERS OF THE NOTES TO THE HOLDERS
OF SENIOR DEBT, DO ANY ONE OR MORE OF THE FOLLOWING: (1) CHANGE THE
MANNER, PLACE, TERMS OR TIME OF PAYMENT OF, OR RENEW OR ALTER, SENIOR DEBT
OR ANY INSTRUMENT EVIDENCING THE SAME OR ANY AGREEMENT UNDER WHICH SENIOR
DEBT IS OUTSTANDING; (2) SELL, EXCHANGE, RELEASE OR OTHERWISE DEAL WITH
ANY PROPERTY PLEDGED, MORTGAGED OR OTHERWISE SECURING SENIOR DEBT; (3)
RELEASE ANY PERSON LIABLE IN ANY MANNER FOR THE COLLECTION OR PAYMENT OF
SENIOR DEBT; AND (4) EXERCISE OR REFRAIN FROM EXERCISING ANY RIGHTS
AGAINST THE COMPANY AND ANY OTHER PERSON.
H. SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred
to in this Article 10, the Trustee and the Holders of Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
I. SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article 10 (although the receipt of
such payment shall otherwise be subject to the applicable provisions of this
Article 10). Only the Company or a Representative may give the notice. Nothing
in this Article 10 shall impair the claims of, or payments to, the Trustee in
its capacity as such under or pursuant to Section 7.07 hereof. Nothing in this
Section 10.12 is intended to or shall relieve any Holder of Notes from the
obligations imposed under Section 10.06 hereof with respect to other
distributions received in violation of the provisions hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
J. SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of the Notes by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effect the subordination
provisions contained in this Article 10, and appoints the Trustee such Holder's
attorney-in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of the Company tending towards liquidation or
reorganization of the business and assets of the Company, the immediate filing
of a claim for the unpaid balance of such Holder's Notes in the form required in
said proceedings and cause said claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof prior to 30 days before the expiration of the
time to file such claim or claims, then any of the holders of the Senior Debt or
their Representative is hereby authorized to file an appropriate claim for and
on behalf of the Holders of said Notes. Nothing herein contained shall be deemed
to authorize the Trustee or the holders of Senior Debt or their Representative
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 thereof, or to authorize the Trustee or the holders of
Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
K. SECTION 10.14. AMENDMENTS.
The provisions of this Article 10 (and the definitions used herein)
shall not be amended or modified without the written consent of the majority of
the lenders under the New Credit Facility.
IX. ARTICLE 11
GUARANTEES
A. SECTION 11.01. GUARANTEE.
Subject to this Article 11, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that: (a)
the principal of and interest on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes, if any, if lawful, and
all other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) 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.
The Guarantors hereby agree that their obligations hereunder shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture or
pursuant to Section 11.06 hereof.
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.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
B. SECTION 11.02. SUBORDINATION OF GUARANTEE.
The Obligations of each Guarantor under its Guarantee pursuant to
this Article 11 shall be junior and subordinated to the Senior Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to the
Senior Debt of the Company. For the purposes of the foregoing sentence, the
Trustee and the Holders shall have the right to receive and/or retain payments
by any of the Guarantors only at such times as they may receive and/or retain
payments in respect of the Notes pursuant to this Indenture, including Article
10 hereof and the holders of Senior Debt shall have the same rights and remedies
provided for in Article 10 hereof.
C. SECTION 11.03. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and
the Guarantors hereby irrevocably agree that the obligations of such Guarantor
under its Guarantee and this Article 11 shall be limited to the maximum amount
as will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance.
D. SECTION 11.04. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 11.01 hereof, each
Guarantor hereby agrees that a notation of such Guarantee substantially in the
form included in Exhibit E shall be endorsed by an Officer of such Guarantor on
each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in Section
11.01 hereof shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
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.
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 Guarantors.
In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Indenture, if required by Section
4.17 hereof, the Company shall cause such Subsidiaries to execute supplemental
indentures to this Indenture and Guarantees in accordance with Section 4.17
hereof and this Article 11, to the extent applicable.
E. SECTION 11.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
No Guarantor may consolidate with or merge with or into (whether or
not such Guarantor is the surviving Person) another Person whether or not
affiliated with such Guarantor unless:
(a) subject to the other provisions of this Section the Person
formed by or surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the obligations of such
Guarantor, pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee, under the Notes, the Indenture, the Registration
Rights Agreement and the Guarantee on the terms set forth herein or therein;
(b) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(c) the Company would be permitted, immediately after giving effect
to such transaction, to incur at least $1.00 of additional Indebtedness pursuant
to Section 4.09 hereof.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Guarantees
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all of such Guarantees had been issued at
the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
F. SECTION 11.06. RELEASES FOLLOWING CERTAIN EVENTS.
In the event of a sale or other disposition of all of the assets of
any Guarantor (other than Holdings), by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the capital stock of any
Guarantor (other than Holdings), then such Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any obligations under
its Guarantee; provided that the Net Proceeds of such sale or other disposition
are applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10 hereof. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the applicable provisions of this Indenture, including without limitation
Section 4.10 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor (other than Holdings) from its
obligations under its Guarantee.
Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 11.
X. ARTICLE 12
MISCELLANEOUS
A. SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss. 318(c), the imposed duties shall control.
B. SECTION 12.02. NOTICES.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company and/or any Guarantor:
TransDigm Inc.
8233 Imperial Drive
Waco, TX 76712
Facsimile No.: (254) 741-5402
Attention: Peter Radekevich
with copies to:
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Facsimile No.: (212) 751-4864
Attention: Kirk Davenport
If to the Trustee:
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, CT 06103
Telecopier No.: (860) 244-1889
Attention: Corporate Trust Administration
The Company, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 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 ss. 312(c).
C. SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
D. SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
or they have made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
E. SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company or such Guarantor under the Notes,
the Guarantees, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
SECTION 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 12 .09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 12.10. 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.
SECTION 12.11. Severability.
In case any provision in this Indenture or in 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.
F. SECTION 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
G. SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Indenture signature pages(s) follow]
[Indenture signature pages(s)]
Dated as of December 3, 1998
TRANSDIGM INC.
By: /s/ Peter Radekevich
--------------------------------------
Name: Peter Radekevich
Title: Chief Financial Officer
Guarantors:
TRANSDIGM HOLDING COMPANY
By: /s/ Peter Radekevich
--------------------------------------
Name: Peter Radekevich
Title: Chief Financial Officer
MARATHON POWER TECHNOLOGIES COMPANY
By: /s/ Peter Radekevich
--------------------------------------
Name: Peter Radekevich
Title: Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY, as
Trustee
By: /s/ Michael M. Hopkins
--------------------------------------
Name: Michael M. Hopkins
Title: Vice President