CINCINNATI BELL INC. AND THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO 8¾% SENIOR SUBORDINATED NOTES DUE 2018 INDENTURE Dated as of March 15, 2010 THE BANK OF NEW YORK MELLON Trustee
Exhibit
4.1
AND
THE
GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
8¾%
SENIOR SUBORDINATED NOTES DUE 2018
__________________
Dated as
of March 15, 2010
__________________
THE BANK
OF NEW YORK MELLON
Trustee
__________________
CROSS-REFERENCE
TABLE
|
TIA
Section
|
Indenture Section |
|
|
310(a)(1)
|
8.10
|
|
|
(a)(2)
|
8.10
|
|
|
(a)(3)
|
8.12
|
|
|
(a)(4)
|
N.A.
|
|
|
(b)
|
8.08;
8.10
|
|
|
(c)
|
N.A.
|
|
|
311(a)
|
8.11
|
|
|
(b)
|
8.11
|
|
|
(c)
|
N.A.
|
|
|
312(a)
|
2.05
|
|
|
(b)
|
13.03
|
|
|
(c)
|
13.03
|
|
|
313(a)
|
8.06
|
|
|
(b)(1)
|
N.A.
|
|
|
(b)(2)
|
8.06
|
|
|
(c)
|
13.02
|
|
|
(d)
|
8.06
|
|
|
314(a)
|
4.02;
13.02
|
|
|
(b)
|
N.A.
|
|
|
(c)(1)
|
13.04
|
|
|
(c)(2)
|
13.04
|
|
|
(c)(3)
|
N.A.
|
|
|
(d)
|
N.A.
|
|
|
(e)
|
13.05
|
|
|
(f)
|
4.06
|
|
|
315(a)
|
8.01
|
|
|
(b)
|
8.05;
13.02
|
|
|
(c)
|
8.01
|
|
|
(d)
|
8.01
|
|
|
(e)
|
7.11
|
|
| 316(a) (last sentence) |
13.06
|
|
|
(a)(1)(A)
|
7.05
|
|
|
(a)(1)(B)
|
7.04
|
|
|
(a)(2)
|
N.A.
|
|
|
(b)
|
7.07
|
|
|
317(a)(1)
|
7.08
|
|
|
(a)(2)
|
7.09
|
|
|
(b)
|
2.04
|
|
|
318(a)
|
13.01
|
|
|
Note:
|
This
Cross-Reference Table shall not, for any purpose, be deemed to be part of
the Indenture.
|
Page
-i-
Page
|
44
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||
-ii-
Page
|
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION
|
||
-iii-
Page
-iv-
Page
| SIGNATURES | S-1 | |
|
|
||
|
|
|
|
|
EXHIBITS
|
|
|
|
|
|
|
-v-
INDENTURE (this “Indenture”) dated as
of March 15, 2010, by and among CINCINNATI BELL INC., an Ohio corporation (the
“Company”), the Guarantors (as hereinafter defined) listed on the signature
pages hereof as Guarantors, and The Bank of New York Mellon, a
New York banking corporation, as trustee (the “Trustee”).
Each party
agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Company’s Notes.
DEFINITIONS
AND ACCOUNTING TERMS
SECTION 1.01. Definitions. As
used herein, the following terms shall have the meanings specified herein unless
the context otherwise requires:
“Acquired
Indebtedness” means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Restricted Subsidiary of such specified Person,
including Indebtedness Incurred in connection with, or in contemplation of, such
other Person merging with or into or becoming a Restricted Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person at the time such asset is acquired by such
specified Person.
“Additional Notes”
means, subject to compliance with Sections 2.02 and 5.04 hereof, an
unlimited principal amount of 8¾% Senior Subordinated Notes due 2018 issued from
time to time after the Closing Date under the terms of this Indenture (other
than pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this
Indenture).
“Affiliate” means,
with respect to any specified Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling”, “controlled by”
and “under common control with”), as used with respect to any specified Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided, however, that, for purposes
of Section 5.06 only, in the case of the Company or any of its
Subsidiaries, beneficial ownership of 10% or more of the Voting Stock in the
Company or such Subsidiary, as the case may be, shall be deemed to be
control. Notwithstanding the foregoing, in no event will any Holder,
any lender under the Credit Agreement, any holder of the 7% Notes, the 7¼%
Notes, the 8¼% Notes or the 8⅜% Notes or any of their respective Affiliates be
deemed to be an Affiliate of the Company or any of its Subsidiaries solely by
virtue of purchasing or holding any such securities or being such a
lender.
“Affiliate
Transaction” is defined in Section 5.06.
“Agent” means any
Registrar, Paying Agent, or agent for service or notices and
demands.
“Appendix” is defined
in Section 2.01.
“Applicable Law” means
all laws, statutes, rules, regulations and orders of, and legally binding
interpretations by, any Governmental Authority and judgments, decrees,
injunctions, writs, permits, orders or like governmental action of any
Governmental Authority applicable to the Company or any of its Subsidiaries or
any of their properties, assets or operations, excluding Environmental
Laws.
“Applicable Premium”
means, with respect to a Note at any Redemption Date, the greater of (i) 1.0% of
the principal amount of such Note and (ii) any excess of (A) the present value
(discounted semi-annually) at such Redemption Date of (1) the Redemption Price
of such Note at March 15, 2014, as set forth in the form of Note, attached
hereto as Exhibit A, plus (2) all remaining required interest payments due on
such Note through March 15, 2014 (excluding accrued but unpaid interest to the
Redemption Date), computed using a discount rate equal to the Treasury Rate plus
50 basis points, over (B) the principal amount of such
Note.
“Asset Disposition”
means the disposition by the Company or any Restricted Subsidiary of the Company
whether by sale, issuance, lease (as lessor (other than under operating
leases)), transfer, loss, damage, destruction, condemnation or other transaction
(including any merger or consolidation) or series of related transactions of any
of the following: (a) any of the Capital Stock of any of the
Company’s Restricted Subsidiaries; (b) all or substantially all of the assets of
the Company or any of its Restricted Subsidiaries; or (c) any other assets of
the Company or any of its Restricted Subsidiaries outside the Ordinary Course of
Business. Notwithstanding the foregoing, “Asset Disposition” shall be deemed not
to include (i) a transfer of assets by the Company to a Restricted Subsidiary of
the Company, or by a Restricted Subsidiary of the Company to the Company or to
another Restricted Subsidiary of the Company; (ii) an issuance of Capital Stock
by a Subsidiary of the Company to the Company or to a Restricted Subsidiary of
the Company; (iii) a Restricted Payment that is permitted by the provisions of
Section 5.02; (iv) a Permitted Investment; (v) any conversion of Cash
Equivalents into cash or any other form of Cash Equivalents; (vi) any
foreclosure on assets; (vii) sales or dispositions of past due accounts
receivable or notes receivable in the Ordinary Course of Business; (viii)
transactions permitted under Article 6 hereof; (ix) grants of credits and
allowances in the Ordinary Course of Business; (x) operating leases or subleases
of real or personal property or licenses of intellectual property, in each case,
on commercially reasonable terms entered into in the Ordinary Course of
Business; (xi) trade-ins or exchanges of equipment or other fixed assets; (xii)
the sale of any assets pursuant to a Sale and Leaseback Transaction,
Data Center Sale and Leaseback Transaction or Wireless Tower Sale and Leaseback
Transaction; (xiii) sales of damaged, worn-out or obsolete equipment or assets
that, in the Company’s reasonable judgment, are no longer either used or useful
in the business of the Company or its Subsidiaries; (xiv) dispositions of
inventory in the Ordinary Course of Business; (xv) the disposition of cash or
investment securities in the ordinary course of management of the investment
portfolio of the Company and its applicable Subsidiaries; (xvi) sales of assets
with a fair market value of less than $500,000; (xvii) sales of other assets
with a fair market value not to exceed $5,000,000 in the aggregate in any fiscal
year; or (xviii) a sale, contribution, conveyance or other transfer of
Receivables and related assets of the type specified
in the definition of Qualified Receivables Transaction by or to a Receivables
Subsidiary in a Qualified Receivables Transaction.
“Asset Sale Offer” is
defined in Section 4.10(a).
“Attributable Debt” in
respect of a Sale and Leaseback Transaction means, at the time of determination,
the present value (discounted at the implicit rate of interest borne by the
Notes including any pay-in-kind interest and amortization discount) determined
in accordance with GAAP of the obligation of the lessee for net rental payments
during the remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been extended or may,
at the option of the lessor, be extended).
“Bankruptcy Law” means
Title 11 of the United States Code or any similar federal or state bankruptcy,
insolvency, reorganization or other law for the relief of debtors.
“Board” or “Board of Directors”
means, as to any Person, the board of directors, the board of advisors or other
similar governing body of such Person.
“Business Day” means
any day which is not a Legal Holiday.
“Capital Expenditures”
means, for any period and with respect to any Person, the aggregate of all
expenditures by such Person and its Subsidiaries for the acquisition or leasing
of fixed or capital assets or additions to fixed or capital assets (including
replacements, capitalized repairs and improvements during such period) which
should be capitalized under GAAP on a consolidated balance sheet of such Person
and its Subsidiaries.
“Capital Lease
Obligation” means, at the time any determination thereof is to be made,
an obligation that is required to be classified and accounted for as a
capitalized lease for financial reporting purposes in accordance with GAAP, and
the amount of Indebtedness represented by such obligation shall be the
capitalized amount of such obligation determined in accordance with GAAP; and
the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease.
“Capital Stock” of any
Person means any and all shares, interests, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities including those
convertible into such equity.
“Cash Equivalents”
means (i) marketable direct obligations issued 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) commercial paper maturing no
more than one year from the date of acquisition and issued by a corporation
organized under the laws of the United States that has a rating of at least A-1
from S&P or at least P-1 from ▇▇▇▇▇’▇; (iii) time deposits maturing no more
than thirty (30) days from the date of creation, certificates of deposit, money
market deposits or bankers’ acceptances maturing within one year from the date
of acquisition thereof issued by, or overnight reverse repurchase agreements
from, any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having combined
capital, surplus and undivided profits of not less than $250,000,000; (iv)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (i) above entered into with a
bank meeting the qualifications described in clause (iii) above; (v)
deposits or investments in mutual or similar funds offered or sponsored by
brokerage or other companies having membership in the Securities Investor
Protection Corporation and having combined capital and surplus of not less than
$250,000,000; and (vi) other money market accounts or mutual funds which invest
primarily in the securities described above.
“Centralized Cash Management
System” means an intercompany cash management system in place among the
Company and its Subsidiaries.
“Channel Financing
Facility” means an equipment and inventory financing credit facility,
pursuant to which the applicable lender thereunder will make available a
revolving credit facility the proceeds of which will be used to fund the
purchase from certain designated vendors of property in the form of (a)
equipment (and related services) and (b) inventory, including for resale to
customers and which credit facility will be secured by a Lien in favor of the
applicable lender solely on the property acquired with such credit facility and
the proceeds thereof.
“Change of Control”
means the occurrence of any of the following: (a) the sale, lease,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more related transactions, of all or substantially all
of the properties and assets of the Company and its Subsidiaries, taken as a
whole, to any Person unless: (x) pursuant to such transaction such
assets are changed into or exchanged for, in addition to any other
consideration, securities of such Person that represent immediately after such
transaction at least a majority of the aggregate voting power of the Voting
Stock of such Person and (y) no “person” (as such term is used in
Section 13(d)(3) of the Exchange Act) or “group” (within the meaning of
Rules 13d-3 and 13d-5 under the Exchange Act) is the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person
or group shall be deemed to have “beneficial ownership” of all shares that any
such person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 35% of the total voting power of the Voting Stock of such Person; (b) the
adoption of a plan relating to the liquidation or dissolution of the Company;
(c) any “person” (as such term is used in Section 13(d)(3) of the Exchange
Act) or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange
Act) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that such person or group shall be deemed to have
“beneficial ownership” of all shares that any such person or group has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of the Company; (d) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election by such Board of Directors of the Company or whose nomination for
election by the shareholders of the Company was approved by a majority vote of
the directors of the Company then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office; (e) the merger or
consolidation of the Company with or into another Person or the merger of
another Person with or into the Company and the securities of the Company that
are outstanding immediately prior to such transaction and which
represent 100% of the aggregate voting power of the Voting Stock of the Company
are changed into or exchanged for cash, securities or property, unless pursuant
to such transaction such securities are changed into or exchanged for, in
addition to any other consideration, securities of the surviving Person that
represent immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving Person.
“Change of Control
Offer” is defined in Section 4.09(b).
“Change of Control
Payment” is defined in Section 4.09(a).
“Change of Control Payment
Date” is defined in Section 4.09(b)(iii).
“Cincinnati Bell Telephone
Notes” means, collectively, Cincinnati Bell Telephone Company LLC’s 6.30%
Debentures due 2028 and medium term notes due 2023.
“Closing Date” means
the date of this Indenture.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time.
“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act or, if at any time after the Closing Date such Commission
is not existing and performing the duties now assigned to it under the Exchange
Act, the body performing such duties at such time.
“Company” means the
party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture
securities.
“Consolidated” or
“consolidated”
(including the correlative term “consolidating” or on
a “consolidated
basis”), when used with reference to any financial term in this Indenture
(but not when used with respect to any tax return or tax liability), means the
consolidation for two or more Persons of the amounts signified by such term for
all such Persons, with intercompany items eliminated in accordance with
GAAP.
“Consolidated Adjusted
Debt” means the Indebtedness of the Company and its Restricted
Subsidiaries (exclusive of Indebtedness of the type that could be Incurred under
Section 5.04(b)(vi) or (viii)) determined on a consolidated basis in accordance
with GAAP.
“Consolidated Adjusted Debt
to EBITDA Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Adjusted Debt as of such date to (b) Consolidated EBITDA for the
applicable four-quarter period ending on the last day of the most recently ended
quarter for which consolidated financial statements of the Company and its
Restricted Subsidiaries are available.
“Consolidated EBITDA”
means for the applicable period of measurement, the Consolidated Net Income of
the Company and its Restricted Subsidiaries on a consolidated basis, plus,
without duplication, the following for the Company and its Restricted
Subsidiaries to the extent
deducted in calculating such Consolidated Net Income: (i)
Consolidated Interest Expense for such period, plus (ii) provisions for taxes
based on income, plus (iii) total depreciation expense, plus (iv) total
amortization expense, plus (v) other non-cash items reducing Consolidated Net
Income (excluding any such non-cash item to the extent that it represents an
accrual or reserve for potential cash items in any future period or amortization
of a prepaid cash item) less other non-cash items increasing Consolidated Net
Income (excluding any such non-cash item to the extent it represents the
reversal of an accrual or reserve for potential cash item in any prior period),
plus (vi) charges taken in accordance with Accounting Standards Codification
Topic 350, plus (vii) all net cash extraordinary losses less net cash
extraordinary gains.
“Consolidated Interest
Expense” means for the applicable period of measurement of the Company
and its Restricted Subsidiaries on a consolidated basis, the aggregate interest
expense for such period determined in accordance with GAAP (including all
commissions, discounts, fees and other charges in connection with standby
letters of credit and similar instruments) for the Company and its Restricted
Subsidiaries on a consolidated basis, but excluding all amortization of
financing fees and other charges incurred by the Company and its Restricted
Subsidiaries in connection with the issuance of Indebtedness.
“Consolidated Net
Income” means for any period the net income (or loss) before provision
for dividends on Preferred Stock of the Company and its Restricted Subsidiaries
on a consolidated basis for such period determined in conformity with GAAP, but
excluding, without duplication, the following clauses (a) through (f) to the
extent included in the computations thereof: (a) the income (or loss)
of any Person accrued prior to the date it becomes a Restricted Subsidiary of
the Company or is merged into or consolidated with the Company or any of its
Restricted Subsidiaries or that Person’s assets are acquired by the Company or
any of its Restricted Subsidiaries; (b) the income (or loss) of any Person
(other than the Company or a Restricted Subsidiary) in which the Company or a
Restricted Subsidiary has an interest except to the extent of the amount of
dividends or other distributions actually paid to the Company or a Restricted
Subsidiary (which amount shall be included in Consolidated Net Income); (c) the
income of any Restricted Subsidiary of the Company to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary (except
to the extent of the amount of dividends or similar distributions actually
lawfully paid to the Company or a Restricted Subsidiary); (d) any after- tax
gains or losses attributable to Asset Dispositions or returned surplus assets of
any pension plan; (e) to the extent not included in clauses (a) through (d)
above, (i) any net extraordinary gains or net extraordinary losses or (ii) any
net non-recurring gains or non-recurring losses to the extent attributable to
Asset Dispositions, the exercise of options to acquire Capital Stock and the
extinguishment of Indebtedness; and (f) cumulative effect of a change in
accounting principles.
“Consolidated Total
Assets” means, as at any date of determination, the aggregate amount of
assets reflected on the consolidated balance sheet of the Company and its
Restricted Subsidiaries prepared in accordance with GAAP most recently delivered
to the Holders pursuant to Section 4.02 hereof.
“Convertible Preferred
Stock” means the 6¾% Cumulative Convertible Preferred Stock of the
Company.
“Corporate Trust
Office” means the principal office of the Trustee at which at any time
its corporate trust business shall be administered, which office at the date
hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, or such other address as
the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).
“Credit Agreement”
means the Credit Agreement, dated as of February 16, 2005, as amended and
restated June 25, 2009, by and among the Company, certain subsidiary guarantors
party thereto, the lenders party thereto from time to time, Bank of America,
N.A., as administrative agent, PNC Bank, N.A., as swingline lender, and certain
other agents, together with the related documents thereto (including any
guarantee agreements and security documents), in each case as such agreement or
agreements may be amended (including any amendment and restatement thereof),
restated, supplemented, replaced, restructured, waived, Refinanced or otherwise
modified from time to time, including any amendment, supplement, modification or
agreement adding Subsidiaries of the Company as additional borrowers or
guarantors thereunder or extending the maturity of, Refinancing, replacing or
otherwise restructuring all or any portion of the Indebtedness (including in the
form of revolving credit loans, term loans, letters of credit or other
indebtedness, including any notes, mortgages, guarantees, collateral documents,
instruments and agreements executed in connection therewith) under such
agreement or any successor or replacement agreement, and whether by the same or
any other agent, lender, investor or group of lenders or investors, or one or
more agreements, contracts, indentures or otherwise and whether or not such
agreement increases the amount permitted to be borrowed thereunder or alters the
maturity thereof or adds Restricted Subsidiaries as additional borrowers or
guarantors thereunder or thereof (provided that such increase
in borrowings is permitted under Section 5.04) and whether by the same or any
other agent, lender or group of lenders.
“Currency Agreement”
means any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect the Company or any Subsidiary of
the Company against fluctuations in currency values.
“Custodian” is defined
in Section 7.01.
“Data Center Sale and
Leaseback Transaction” means the disposition, in the form of and pursuant
to one or more Sale and Leaseback Transactions by one or more of the Company and
its Subsidiaries, of the real property and related improvements housing all or
part of the operations of the data center business of the Company and its
Subsidiaries, meeting the conditions in the Credit Agreement (as in effect on
the date hereof).
“Default” means any
event, act or condition that is, or with the giving of notice, lapse of time or
both would constitute, an Event of Default.
“Designated Senior
Indebtedness” means: (i) the Indebtedness under the Credit
Agreement; (ii) the Indebtedness under the 7% Notes; (iii) the Indebtedness
under the 8¼% Notes; and (iv) any other Senior Indebtedness of the
Company that, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $25,000,000 and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as “Designated Senior Indebtedness” for purposes of this Indenture;
provided that the
Company shall so advise the Trustee.
“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 or Asset
Disposition), matures (excluding any maturity as the result of an optional
redemption by the Company 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
or Asset Disposition) on or prior to the Stated Maturity.
“8¼%
Notes” means the 8.25% Senior Notes due 2017 of the
Company.
“8⅜% Notes” means the
8⅜% Senior Subordinated Notes due 2014 of the Company.
“Environmental Laws”
means all applicable foreign, federal, state or local laws, statutes, common law
duties, rules, regulations, ordinances and codes, together with all
administrative orders, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authorities, in each case relating to
environmental, health, safety and land use matters; including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Clean Air
Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal
Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances
Control Act, and the Emergency Planning and Community Right-to-Know
Act.
“Equity Offering”
means a public or private sale for cash of Capital Stock (other than
Disqualified Capital Stock or Preferred Stock) of the Company.
“Event of Default” is
defined in Section 7.01.
“Excess Proceeds” is
defined in Section 5.05(b).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Existing
Indebtedness” means all Indebtedness of the Company and its Restricted
Subsidiaries existing as of the Closing Date (after giving effect to the
redemption, repurchase, repayment or prepayment of Indebtedness out of the
proceeds of the Notes, but excluding any Indebtedness outstanding under the
Credit Agreement).
“fair market value”
means, with respect to any asset or property, the price which could be
negotiated in an arm’s-length transaction between a willing seller and a willing
and able buyer. Unless
otherwise expressly required elsewhere herein, fair market value will be
determined in good faith and, for transactions involving an aggregate
consideration greater than $25,000,000, by resolution of the Board of Directors
of the Company, and any such determination shall be conclusive absent a manifest
error.
“Fall Away Event”
means the Notes shall have achieved Investment Grade status and the Company
delivers to the Trustee an Officers’ Certificate certifying the satisfaction of
such condition.
“fiscal year” means a
fiscal year of the Company and its Restricted Subsidiaries ending on December 31
of any calendar year.
“GAAP” means United
States generally accepted accounting principles as of the Closing Date, 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 entities as have been approved by a significant segment
of the accounting profession.
“Governmental
Authority” means (a) the government of the United States of America or
any State or other political subdivision thereof, (b) any government or
political subdivision of any other jurisdiction in which the Company or any of
its Subsidiaries conducts all or a part of its business, or which properly
asserts jurisdiction over any properties of the Company or any of its
Subsidiaries or (c) any entity properly exercising executive, legislative,
judicial, regulatory or administrative functions of any such
government.
“Guarantee” means a
guarantee (other than by endorsement of negotiable instruments for collection or
deposit in the ordinary course of business), direct or indirect, in any manner
(including letters of credit and reimbursement agreements in respect thereof),
of all or any part of any Indebtedness.
“Guaranteed
Obligations” is defined in Section 10.01.
“Guarantor” means any
Person that has issued a Note Guarantee.
“Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option contracts
and other hedging agreements.
“Holder” means a
Person in whose name a Note is registered at the Registrar.
“Incur” means create,
incur, issue, assume, Guarantee or otherwise become directly or indirectly
liable, contingently or otherwise (including by operation of law).
“Indebtedness” means,
with respect to any Person on any date of determination, without
duplication: (i) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money; (ii) the principal of and
premium (if any) in respect of indebtedness of such Person evidenced by bonds,
debentures, notes or other similar instruments; (iii) all Capital Lease
Obligations and all Attributable Debt 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, in each
case to the extent the purchase price is due more than six months from the date
the obligation is Incurred (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 all Interest Swap Obligations of such
Person; and (ix) all obligations represented by Disqualified Capital Stock of
such Person.
“Indenture” is defined
in the preamble.
“Independent Qualified
Party” means an investment banking firm, accounting firm or appraisal
firm, in each case, of national standing; provided, however, that such firm is
not an Affiliate of the Company.
“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 any interest rate protection agreement, interest rate future
agreement, interest rate option agreement, interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement to which such Person is
party or of which it is a beneficiary.
“Investment” means (i)
any direct or indirect purchase or other acquisition by the Company or any of
its Restricted Subsidiaries of any beneficial interest in, including stock,
partnership interest or other Capital Stock of, or ownership interest in, any
other Person; and (ii) any direct or indirect loan, advance or capital
contribution by the Company or any of its Restricted Subsidiaries to any other
Person, including all indebtedness and accounts receivable from that other
Person that did not arise from sales to or services provided to that other
Person in the Ordinary Course of Business. For purposes of
Section 5.02: (i) “Investment” shall include and be valued at
the fair market value of the net assets of any Restricted Subsidiary of the
Company (to the extent of the Company’s percentage ownership therein) at the
time that such Restricted Subsidiary is designated an Unrestricted Subsidiary of
the Company and shall exclude the fair market value of the net assets of any
Unrestricted Subsidiary of the Company (to the extent of the
Company’s percentage ownership therein) at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary of the Company; and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
costs of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; provided that no such payment
of dividends or distributions or receipt of
any such other amounts shall reduce the amount of any Investment if such payment
of dividends or distributions or receipt of any such amounts would be included
in Consolidated Net Income.
“Investment Grade”
means, with respect to the Notes, a credit rating of (i) at least “Baa3”
(or the equivalent) by ▇▇▇▇▇’▇ and (ii) at least “BBB-” (or the equivalent)
by S&P ; provided
that neither of such rating or entities shall have announced a negative or
similar outlook or announced or informed the Company that it is reviewing the
rating of the Notes for possible downgrading of the rating thereof.
“Legal Holiday” means
a Saturday, a Sunday or a day on which banking institutions in New York or
Ohio or at a place of payment are authorized by law, regulation or executive
order to remain closed. If any payment date in respect of the Notes
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 for the intervening period.
“Leverage Test” is
defined in Section 5.04(a).
“Lien” means any lien,
mortgage, pledge, security interest, charge, encumbrance or governmental levy or
assessment of any kind, whether voluntary or involuntary (including any
conditional sale or other title retention agreement and any lease in the nature
thereof).
“maturity”, when used
with respect to any Note, means the date on which the principal of such Note
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise
(including in connection with any offer to purchase that this Indenture requires
the Company to make).
“Moody’s” means
▇▇▇▇▇’▇ Investors Service, Inc.
“Mutual Subsidiaries”
means, collectively, (i) Mutual Signal Holding Corporation, a Delaware
corporation, (ii) Mutual Signal Corporation, a New York corporation, (iii)
Mutual Signal Corporation of Michigan, a New York corporation, and (iv) MSM
Associates Limited Partnership, a Delaware limited partnership.
“Net Cash Proceeds”,
with respect to any issuance or sale of Capital Stock, means the cash proceeds
of such issuance or sale net of attorneys’ fees, accountants’ fees,
underwriters’ or placement agents’ fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
“Net Proceeds” means
cash proceeds actually received by the Company or any of its Restricted
Subsidiaries from any Asset Disposition (including insurance proceeds, awards
of condemnation, and payments under notes or other debt securities
received in connection with any Asset Disposition), net of (a) the costs of such
sale, issuance, lease, transfer or other disposition (including all legal, title
and recording tax expenses, commissions and other fees and expenses incurred and
all taxes required to be paid or accrued as a liability under GAAP as a
consequence of such sale, lease or transfer), (b) amounts applied to repayment
of Indebtedness (other than revolving credit Indebtedness under the Credit
Agreement, without a corresponding reduction in the
revolving credit commitment) secured by a Lien on the asset or property disposed
of, (c) if such Asset Disposition involves the sale of a discrete business or
product line, any accrued liabilities of such business or product line required
to be paid or retained by the Company or any of its Restricted Subsidiaries as
part of such disposition, (d) appropriate amounts to be provided by the Company
or a Restricted Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with an Asset Disposition and retained
by the Company or such Restricted Subsidiary, as the case may be, after such
Asset Disposition, including pension and benefit liabilities, liabilities
related to environmental matters or liabilities under any indemnification
obligations associated with such Asset Disposition and (e) all distributions and
other payments required to be made to minority interest holders in Subsidiaries
or joint ventures as a result of such Asset Disposition, but only to the extent
required by constituent documents of such Subsidiary or such joint
venture.
“Note Guarantee” means
each Guarantee of the Obligations with respect to the Notes issued by a Person
pursuant to the terms of this Indenture.
“Notice of Default” is
defined in Section 8.05.
“Obligations” means
all obligations for principal, premium (if any), interest, penalties, fees,
indemnification, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
“Offer Amount” is
defined in Section 4.10(c).
“Offer Period” is
defined in Section 4.10(a).
“Officers’
Certificate” of the Company means a certificate signed on behalf of the
Company by two Persons, one of which shall be any of the
following: the chairman of the board, the chief executive officer,
the president, the chief operating officer, the chief financial officer, the
chief accounting officer or the treasurer (or any such other officer that
performs similar duties) of the Company, and the other one shall be any of the
following: the chairman of the board, the chief executive officer,
the president, the chief operating officer, any vice president, the chief
financial officer, the chief accounting officer, the treasurer, the assistant
treasurer, controller, the secretary or an assistant secretary (or any such
other officer that performs similar duties) of the Company. One of the officers
signing an Officers’ Certificate given pursuant to Section 4.06 shall be
the principal executive, financial or accounting officer or treasurer of the
Company.
“Opinion of Counsel”
means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company
or a Guarantor.
“Ordinary Course of
Business” means, in respect of any transaction involving the Company or
any Restricted Subsidiary of the Company, the ordinary course of such Person’s
business, as conducted by any such Person in accordance with past practice and
undertaken by such Person in good faith.
“Paying Agent” is
defined in Section 2.03(a).
“Payment Default”
means any default which occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, premium, if any, or interest on, unpaid drawings for letters of
credit issued in respect of, or regularly accruing fees with respect to, any
Senior Indebtedness (including guarantees of the foregoing items which
constitute such Senior Indebtedness).
“Permitted
Acquisition” means the purchase by the Company or a Restricted Subsidiary
of the Company of all or substantially all of the assets of a Person whose
primary business is the same, related, ancillary or complementary to the
business in which the Company and its Restricted Subsidiaries were engaged on
the Closing Date, or any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment (i) such Person
and each Subsidiary of such Person becomes a Restricted Subsidiary of the
Company whose primary business is the same, related, ancillary or complementary
to the business in which the Company and its Restricted Subsidiaries were
engaged on the Closing Date or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, a Restricted Subsidiary of the Company and
whose primary business is the same, related, ancillary or complementary to the
business in which the Company and its Subsidiaries were engaged on the Closing
Date.
“Permitted
Adjustments” means, for the purpose of calculating the Leverage Test, pro
forma adjustments arising out of events (including cost savings resulting from
head count reduction, closure of facilities and similar restructuring charges)
which are directly attributable to a specific transaction, are factually
supportable and are expected to have a continuing impact; provided that such
adjustments are set forth in an Officers’ Certificate signed by the Company’s
chief financial officer and another officer which states (i) the amount of such
adjustment or adjustments, (ii) that such adjustment or adjustments are based on
the reasonable good faith beliefs of the officers executing such Officers’
Certificate at the time of such execution and (iii) that any related Incurrence
of Indebtedness is permitted pursuant to this Indenture.
“Permitted Asset Swap”
means any transfer of properties or assets by the Company or any of its
Restricted Subsidiaries in which the consideration received by the transferor
consists of like properties or assets to be used in the business of the Company
or its Restricted Subsidiaries in the same or similar manner as such transferred
properties or assets; provided
that (i) the fair market value (determined in good faith by the Board of
Directors of the Company) of properties or assets received by the Company or any
of its Restricted Subsidiaries in connection with such Permitted Asset Swap is
at least equal to the fair market value (determined in good faith by the Board
of Directors of the Company) of properties or assets transferred by the Company
or such Restricted Subsidiary in connection with such Permitted Asset Swap and
(ii) the aggregate fair market value of assets transferred by the Company in
connection with all Permitted Asset Swaps after the Closing Date does not exceed
10% of Consolidated Total Assets.
“Permitted
Investments” means:
(i) (A)
any Investment in (including loans and advances to) the Company or a Restricted
Subsidiary of the Company whose primary business is the same, related, ancillary
or complementary to the business in which the Company and its Subsidiaries were
engaged in on the date of such Investment and (B) any acquisition by the Company
or a Restricted
Subsidiary of the Company of beneficial interest in a Restricted Subsidiary of
the Company from another Restricted Subsidiary of the Company or the
Company;
(ii) any
Investment in Cash Equivalents or the Notes;
(iii) any
Investment related to or arising out of a Permitted Acquisition;
(iv) any
Investment which results from the receipt of non-cash consideration from an
asset sale made pursuant to and in compliance with the provisions of
Section 5.05 or from any sale or other disposition of assets not
constituting an Asset Disposition;
(v) payroll,
travel and similar advances to cover matters that are expected at the time of
such advances ultimately to be treated as expenses for accounting purposes and
that are made in the Ordinary Course of Business;
(vi) receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the
Ordinary Course of Business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include
such concessionary trade terms as the Company or any such Restricted Subsidiary
deems reasonable under the circumstances;
(vii) loans
and advances to employees made in the Ordinary Course of Business not to exceed
$2,000,000 in the aggregate at any time outstanding; provided, however, for purposes of this definition,
“advances” will not restrict advances for travel, moving or relocation expenses
to employees advanced and repaid in the Ordinary Course of
Business;
(viii) loans
and advances not to exceed $2,000,000 at any time outstanding to employees of
the Company or its Subsidiaries for the purpose of funding the purchase of
Capital Stock of the Company by such employees;
(ix) any
Investments received as part of the settlement of litigation or in satisfaction
of extensions of credit to any Person otherwise permitted under this Indenture
pursuant to the reorganization, bankruptcy or liquidation of such Person or a
good faith settlement of debts by said Person;
(x) any
Investment existing on the Closing Date, any Investment received as a
distribution in respect of such existing Investment and any Investment received
in exchange for such existing Investment; provided that, in the case of an exchange, the
fair market value (as determined in good faith by the Board of Directors of the
Company) of the Investment being exchanged is at least equal to the fair market
value (as determined in good faith by the Board of Directors of the Company) of
the Investment for which such Investment is being exchanged;
(xi) Investments
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 such Person merges or
consolidates with the Company or any of its Restricted Subsidiaries, in either
case in
compliance with this Indenture; provided such Investments
were not made by such Person in connection with or in anticipation or
contemplation of such Person becoming a Restricted Subsidiary of the Company or
such merger or consolidation;
(xii) Investments
in stock, obligations or securities received in settlement of debts created in
the Ordinary Course of Business or in satisfaction of judgments;
(xiii) Investments
by the Company or any Restricted Subsidiary pursuant to an Interest Swap
Obligation or a Currency Agreement permitted by Section 5.04(b)(vi) or
(viii);
(xiv) Investments
consisting of debits and credits between or among the Company, its Restricted
Subsidiaries and its Unrestricted Subsidiaries pursuant to a Centralized Cash
Management System;
(xv) Investments
consisting of loans, advances and payables due from suppliers or customers made
by the Company or its Restricted Subsidiaries in the Ordinary Course of
Business;
(xvi) Investments
that may be deemed to arise from the cashless exercise by employees of the
Company of rights, options or warrants to purchase Capital Stock of the
Company;
(xvii) Investments,
the consideration paid for which consists solely of Capital Stock (other than
Disqualified Capital Stock) of the Company;
(xviii) Investments
made since the Closing Date in an aggregate amount not in excess of 5% of the
Consolidated Total Assets for any Investments valued as of the date such
Investment is made, including joint ventures;
(xix)
Investments, the consideration for which was paid by a Person other than the
Company or any of its Restricted Subsidiaries, without recourse to the Company
or its Restricted Subsidiaries; and
(xx)
Investments in a Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person in connection with a Qualified Receivables
Transaction, including Investments of funds held in accounts permitted or
required by the arrangements governing such Qualified Receivables Transaction or
any related Indebtedness.
“Permitted Liens”
means:
(i)
Liens to secure the performance of statutory obligations, surety or appeal
bonds, letters of credit or other obligations of a like nature incurred in the
Ordinary Course of Business;
(ii) Liens
for taxes, assessments and governmental charges, levies or claims (x) that are
not yet due and payable or (y) that are due and payable and are being
contested in
good faith by appropriate proceedings so long as such proceedings stay
enforcement of such Liens;
(iii) any
Lien arising out of a judgment or award not constituting an Event of
Default;
(iv)
statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen,
workmen, repairmen and other similar liens imposed by law, which are incurred in
the Ordinary Course of Business for sums not more than thirty (30) days
delinquent or which are being contested in good faith by appropriate proceedings
so long as such contest stays enforcement of such Liens;
(v)
survey exceptions, easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not interfering in
any material adverse respect with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
(vi)
any interest or title of a lessor under any Capital Lease Obligation or
Synthetic Lease Obligation permitted pursuant to Section 5.04 (b)(xiv); provided that such Liens do
not extend to any property or asset which is not leased property subject to such
Capital Lease Obligation;
(vii)
Liens securing Indebtedness permitted pursuant to Section 5.04(b)(iii);
provided, however, that in the case of
Purchase Money Indebtedness (a) such Indebtedness shall not exceed the cost of
the property or assets so acquired, constructed, repaired, added to or improved
and shall not be secured by any other property or assets of the Company or any
Restricted Subsidiary of the Company and (b) the Lien securing such Indebtedness
shall be created within 180 days after the date of such acquisition or
completion of construction, repair, improvement, addition or commencement of
full operation of the property subject to the Lien or, in the case of a
Refinancing of any Purchase Money Indebtedness, within 180 days of such
Refinancing;
(viii) 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;
(ix)
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;
(x)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of
goods;
(xi) Liens
arising from filing Uniform Commercial Code financing statements regarding
leases;
(xii) Liens
in existence on the Closing Date;
(xiii)
Liens on property or shares of Capital Stock of another Person at the time such
other Person becomes a Subsidiary of such Person; provided, however, that such Liens are
not created, Incurred or assumed in connection with, or in contemplation of,
such other Person becoming a Subsidiary;
(xiv)
leases, subleases, licenses and sublicenses of the type
referred to in clause (x) in the second sentence of the definition of
“Asset Disposition” granted to third parties in the Ordinary Course of
Business;
(xv)
banker’s liens and rights of offset of the holders of Indebtedness of the
Company or any Restricted Subsidiary on monies deposited by the Company or any
Restricted Subsidiary with such holders of Indebtedness in the Ordinary Course
of Business;
(xvi)
Liens securing Interest Swap Obligations or obligations under Currency
Agreements so long as such obligations relate to Indebtedness that is, and is
permitted under this Indenture, to be secured by a Lien on the same property
securing such obligations;
(xvii)
Liens to secure any Refinancing (or successive Refinancings) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (xii) and (xiii); provided, however, that (i)
such new Lien shall be limited to all or part of the same property that secured
the original Lien (plus improvements to or on such property) and (ii) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (1) the outstanding principal amount or, if greater,
committed amount of the Indebtedness secured by ▇▇▇▇▇ described under clauses
(xii) and (xiii) at the time the original Lien became a Permitted Lien under
this Indenture and (2) an amount necessary to pay any fees and expenses,
including premiums related to such Refinancings;
(xviii)
pledges or deposits to secure obligations under workers’ compensation laws or
similar legislation or to secure public or statutory obligations;
(xix)
Liens on property at the time such Person or any of its Subsidiaries acquires
the property, including any acquisition by means of a merger or consolidation
with or into such Person or a Subsidiary of such Person; provided, however, that such Liens are
not created, Incurred or assumed in connection with, or in contemplation of,
such acquisition; provided, further, however, that the Liens may
not extend to any other property owned by such Person or any of its
Subsidiaries;
(xx)
other Liens that do not, in the aggregate, secure obligations in an aggregate
amount in excess of 5% of the Consolidated Total Assets valued as of the date of
the Incurrence of any such obligation; and
(xxi)
Liens on Receivables and related assets of the type specified in the definition
of “Qualified Receivables Transaction” Incurred in connection with a Qualified
Receivables Transaction.
“Permitted Refinancing
Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are
used to Refinance, other Indebtedness of any such Person; provided that (i) the
principal amount of such Permitted Refinancing Indebtedness does not exceed the
principal amount plus accrued interest and premium, if any, of the Indebtedness
so exchanged or Refinanced (plus fees); (ii) such Permitted Refinancing
Indebtedness has a final maturity date on or later than the final maturity date
of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being exchanged or
Refinanced; (iii) if the Indebtedness being exchanged or Refinanced is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes on terms at least
as favorable to the Holders as those contained in the documentation governing
the Indebtedness being exchanged or Refinanced; and (iv) such Permitted
Refinancing Indebtedness is Incurred by the Company or a Guarantor or the Person
who is the obligor on the Indebtedness being exchanged or
Refinanced. “Permitted Refinancing Indebtedness” shall not include
Indebtedness Incurred to Refinance Indebtedness originally Incurred in violation
of this Indenture or pursuant to Section 5.04(b)(iii), (v), (vi), (vii), (viii),
(x) or (xi).
“Person” means any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
“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, and shall include the Convertible Preferred
Stock of the Company.
“principal” of a Note
means the principal of the Note plus the premium, if any, payable on the Note
which is due or overdue or is to become due at the relevant time.
“Purchase Date” is
defined in Section 4.10(c).
“Purchase Money
Indebtedness” means Indebtedness Incurred for the purpose of financing
all or any part of the purchase price or cost of construction, repair, additions
to or improvements of property, plant or equipment used in the business of the
Company or a Restricted Subsidiary.
“Qualified Receivables
Transaction” means any transaction or series of transactions that may be
entered into by the Company or any Restricted Subsidiary in which the Company or
any Restricted Subsidiary may sell, contribute, convey or otherwise transfer to
(1) a Receivables Subsidiary (in the case of a transfer by the Company or any
Restricted Subsidiary) and (2) any other Person (in the case of a transfer by a
Receivables Subsidiary), or may grant a security interest in, any Receivables
(whether now existing or arising in the future) of the Company or any Restricted
Subsidiary, and any related assets, including all collateral securing such
Receivables, all contracts and all guarantees or other obligations in respect of
such Receivables, proceeds of such Receivables and other assets (including
contract rights) which are customarily transferred
or in respect of which security interests are customarily granted in connection
with asset securitization transactions involving Receivables.
“Receivable” means any
indebtedness and other payment obligations owed to the Company, any Restricted
Subsidiary or any Receivables Subsidiary, whether constituting an account,
chattel paper, payment intangible, instrument or general intangible, in each
case arising in connection with (a) the sale of goods or the rendering of
service or (b) the lease, license, rental or use of equipment facilities or
software, including the obligation to pay any finance charges, fees and other
charges with respect thereto.
“Receivables
Subsidiary” means a wholly owned Subsidiary of the Company (or other
Person formed for the purpose of engaging in a Qualified Receivables Transaction
with the Company or a Restricted Subsidiary in which the Company or any
Restricted Subsidiary of the Company makes an Investment and to which the
Company or any Restricted Subsidiary of the Company transfers Receivables) that
engages in no activities other than in connection with the financing of
Receivables, all proceeds thereof and all rights (contractual or other),
collateral and other assets relating thereto, and any business or activities
incidental or related to such business, and that is designated by the Company’s
Board of Directors (as provided below) as a Receivables Subsidiary
and
(1) no
portion of the Indebtedness or any other Obligations (contingent or otherwise)
of which
(a) is
guaranteed by the Company or any Restricted Subsidiary (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to representations, warranties, covenants, indemnities and performance
guarantees customarily entered into in connection with accounts receivable
financings)
(b) is
recourse to or obligates the Company or any Restricted Subsidiary in any way
other than pursuant to representations, warranties, covenants and indemnities
customarily entered into in connection with accounts receivable financings
or
(c) subjects
any property or asset of the Company or of any Restricted Subsidiary, directly
or indirectly, contingently or otherwise, to the satisfaction thereof, other
than pursuant to representations, warranties, covenants and indemnities
customarily entered into in connection with accounts receivable
financings;
(2) with
which neither the Company nor any Restricted Subsidiary 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 who are not Affiliates of the Company, other
than fees payable in the ordinary course of business in connection with
servicing Receivables; and
(3) with
which neither the Company nor any Restricted Subsidiary has any obligation to
maintain or preserve such Receivables Subsidiary’s financial condition
(other
than customary requirements for the maintenance of a minimum net worth) or cause
such Receivables Subsidiary to achieve certain levels of operating
results.
As of the Closing Date,
Cincinnati Bell Funding LLC is a Receivables Subsidiary. Any
designation of a Receivables Subsidiary by the Board of Directors of the Company
after the Closing Date shall be evidenced to the Trustee by filing with the
Trustee a copy of the resolution of such Board of Directors giving effect to
such designation and an Officers’ Certificate certifying that such designation
complied with the foregoing provisions.
“Redemption Date,”
when used with respect to any Note to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture and the Notes.
“Redemption Price,”
when used with respect to any Note to be redeemed, means the price at which such
Note is to be redeemed pursuant to this Indenture and the Notes.
“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.
“Registrar” is defined
in Section 2.03(a).
“Remaining Present
Value” means, as of any date with respect to any lease, the present value
as of such date of the scheduled future lease payments with respect to such
lease, determined with a discount rate equal to a market rate of interest for
such lease, as reasonably determined by the Company at the time such lease is
entered into.
“Representative” means
the trustee, agent or representative (if any) for an issue of Senior
Indebtedness.
“Required Holders”
means Holders holding more than 50% of the then outstanding aggregate principal
amount of the Notes (exclusive of Notes then owned directly or indirectly by the
Company or any of its Subsidiaries or Affiliates).
“Responsible Officer”
means the chief executive officer, the president, the chief financial officer,
the principal accounting officer or the treasurer (or the equivalent of any of
the foregoing) of the Company or any of its Subsidiaries or any other officer,
partner or member (or person performing similar functions) of the Company or any
of its Subsidiaries responsible for overseeing the administration of, or
reviewing compliance with, all or any portion of this Indenture.
“Restricted
Investment” means an Investment other than a Permitted
Investment.
“Restricted Payments”
is defined in Section 5.02(a)(iv).
“Restricted
Subsidiary” of any Person means any Subsidiary of such Person which at
the time of determination is not an Unrestricted Subsidiary.
“S&P” means
Standard & Poor’s Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“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 Closing 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 any other Person from whom funds have been or are to be advanced
by such Person on the security of such property.
“Secured Indebtedness”
means any Indebtedness secured by a Lien.
“Senior Indebtedness”
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 a Guarantor, as the case may be, whether outstanding on the Closing
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 Note
Guarantee, as applicable. Without limiting the generality of the foregoing,
“Senior Indebtedness” 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:
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(1)
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all
monetary obligations (including Guarantees thereof) of every nature of the
Company or a Guarantor under the Credit Agreement, including, without
limitation, obligations (including Guarantees) to pay principal, premium
(if any), any interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities;
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(2)
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all
monetary obligations (including Guarantees thereof) of every nature of the
Company or a Guarantor under each of the 7% Notes, the 7 ¼%
Notes and the 8 ¼%
Notes, including, without limitation, obligations (including Guarantees)
to pay principal, premium (if any), any interest, fees, expenses and
indemnities;
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(3)
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all
obligations under Interest Swap Obligations (including Guarantees
thereof);
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(4)
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all
obligations under Hedge Agreements (including Guarantees thereof);
and
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(5)
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all
obligations under Currency Agreements (including Guarantees
thereof)
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in each
case whether outstanding on the Closing Date or thereafter Incurred.
Notwithstanding the foregoing, “Senior Indebtedness” shall not
include:
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(1)
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any
Indebtedness of the Company to a Subsidiary of the Company or any
Indebtedness of a Guarantor to the Company or another Subsidiary of the
Company;
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(2)
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any
Indebtedness to, or guaranteed on behalf of, any director, officer or
employee, in such capacities of the Company or any Subsidiary of the
Company (including, without limitation, amounts owed for
compensation);
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(3)
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Indebtedness
owing to trade creditors and other amounts Incurred (but not under the
Credit Agreement) in connection with obtaining goods, materials or
services including, without limitation, accounts
payable;
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(4)
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obligations
in respect of any Capital Stock, including Disqualified Capital
Stock;
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(5)
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any
liability for federal, state, local or other taxes owed or owing by the
Company or any Guarantor;
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(6)
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that
portion of any Indebtedness Incurred in violation of the
Indenture;
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(7)
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Indebtedness
that, when Incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, is without recourse
to the issuer of such Indebtedness;
and
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(8)
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any
Indebtedness that is, by its express terms, subordinated in right of
payment to any other Indebtedness of the Company or a
Guarantor.
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“Senior Subordinated
Indebtedness” of the Company means the Notes and any other Indebtedness
of the Company that specifically provides that such Indebtedness is to rank
equally with the Notes in right of payment. “Senior Subordinated Indebtedness”
of a Guarantor has a correlative meaning. Without limiting the generality of the
foregoing, “Senior Subordinated Indebtedness” shall also include the 8 ⅜%
Notes (including Guarantees thereof) and the Company’s subordinated Guarantee of
Cincinnati Bell Telephone Company LLC’s 6.30% Debentures due 2028.
“series” means any
series of Notes outstanding under this Indenture.
“7% Notes” means the
7% Senior Notes due 2015 of the Company.
“7¼% Notes” means the
7¼% Senior Notes due 2023 of the Company.
“Significant
Subsidiary” means any Restricted Subsidiary that is or would be a
“significant subsidiary” of the Company within the meaning of Rule 1-02 of
Regulation S-X promulgated by the Commission.
“Stated Maturity” when
used with respect to any Note or any installment of interest thereon, means the
date specified in this Indenture or such Note as the scheduled fixed date on
which the principal of such Note or such installment of interest is due and
payable and shall not include any contingent obligation to repay, redeem or
repurchase any such interest or principal prior to the date originally scheduled
for payment thereof.
“Subordinated
Indebtedness” of the Company means any Indebtedness of the Company which
is expressly subordinated to and junior to the payment and performance of the
Notes. “Subordinated Indebtedness” of a Guarantor has a correlative
meaning. Without
limiting the generality of the foregoing, “Subordinated Indebtedness” shall also
include the Company’s subordinated Guarantee of Cincinnati Bell Telephone
Company LLC’s medium term notes.
“Subsidiary” means,
with respect to any Person, (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (A) the sole general
partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (B) the only general partners of which are such Person or of
one or more Subsidiaries of such Person (or any combination thereof). Any Person
becoming a Subsidiary of the Company after the Closing Date shall be deemed to
have Incurred all of its outstanding Indebtedness on the date it becomes a
Subsidiary.
“Successor Company” is
defined in Section 6.01(a).
“Synthetic Lease
Obligation” means the monetary obligation of a Person under a synthetic,
off-balance sheet or tax retention lease, including any financing lease or other
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such person but which are characterized as the
indebtedness of such person for U.S. tax purposes (without regard to accounting
treatment).
“TIA” means the Trust
Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended from time to
time.
“Treasury Rate” means,
with respect to a Redemption Date, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) that has become publicly available at least two Business Days prior
to such Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source of similar market data )) most nearly equal to the
period from such Redemption Date to March 15, 2014; provided, however, that if the period
from such Redemption Date to March 15, 2014 is not equal to the constant
maturity of the United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given, except
that if the period from such redemption date to March 15, 2014 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be
used.
“Trust Officer” means,
when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of the Indenture.
“Trustee” means the
party named as such in this Indenture until a successor replaces it and
thereafter, means the successor.
“Unrestricted
Subsidiary” means (i) each of Cincinnati Bell
Funding LLC, MVNO Holdings LLC, Cincinnati Bell Technology Solutions UK Limited
and the Mutual Subsidiaries; (ii) any Subsidiary of the
Company that at the time of determination shall be or continues to be
designated an Unrestricted Subsidiary by the Board of Directors of the Company
in the manner provided below; and (iii) any Subsidiary of an Unrestricted
Subsidiary.
The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary of the Company) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries 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 Holders that such
designation complies with Section 5.02; and (ii) each Subsidiary to be so
designated and each of its Subsidiaries has not at the time of designation, and
does not thereafter, Incur any Indebtedness pursuant to which any lender or
investor has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries.
The Board of Directors of the
Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that immediately
after giving effect to such designation: (i) the Company could Incur
$1.00 of additional Indebtedness under Section 5.04(a); and (ii)
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 of the Company shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the resolution of such Board of Directors giving
effect to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing provisions.
“U.S. Government
Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged and that are
not callable or redeemable at the issuer’s option.
“Voting Stock” of a
Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof.
“Weighted Average Life to
Maturity” means, when applied to any Indebtedness at any date, the number
of years obtained by dividing (i) the sum of the products obtained by
multiplying (A) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal, including payment at
final maturity, in respect thereof, by (B) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment, by (ii) the then outstanding principal amount of such
Indebtedness.
“Wireless Tower Sale and
Leaseback Transaction” means the disposition, in the form of and pursuant
to one or more Sale and Leaseback Transactions by one or more of the Company and
its Subsidiaries, of the tower and transmitter sites used to provide wireless
telephone services (including, as applicable, real property, related
improvements and equipment and related lease, sublease, license, contract and
other rights), in compliance with the Credit Agreement (as in effect on the date
hereof).
SECTION 1.02. Incorporation by Reference
of Trust Indenture Act. This Indenture is subject to the
mandatory provisions of the TIA, which are incorporated by reference in and made
a part of this Indenture. The following TIA terms have the following
meanings:
“indenture securities” means the
Notes.
“indenture security holder” means
a Holder.
“indenture to be qualified” means
this Indenture.
“indenture trustee” or
“institutional trustee” means the Trustee.
“obligor” on the indenture
securities means the Company and any other obligor on the Notes.
All other TIA terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule have the meanings assigned to them by such
definitions.
SECTION 1.03.
Rules of
Construction. Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or”
is not exclusive;
(d) “including”
means “including without limitation”;
(e) “to”
and “until” each mean “to but excluding”;
(f) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein);
(g) any
reference herein to any Person shall be construed to include such Person’s
successors and assigns;
(h) words
in the singular include the plural and words in the plural include the
singular;
(i) unsecured
Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(j) the
principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance
sheet of the company dated such date prepared in accordance with GAAP;
and
(k) the
principal amount of any Preferred Stock shall be (i) the maximum liquidation
value of such Preferred Stock or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Stock, whichever is
greater.
THE
NOTES
SECTION 2.01. Form
and Dating. Provisions relating to the Notes are set forth
in the Appendix attached hereto (the “Appendix”), which is hereby incorporated
in and expressly made a part of this Indenture. The Notes issued on
the Closing Date and any Additional Notes shall be treated as a single class for
all purposes under this Indenture, including waivers, amendments, redemptions
and offers to purchase. The Notes and the Trustee’s certificate of
authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such
notation, legend or endorsement is in a form acceptable to the
Company). Each Note shall be dated the date of its
authentication. The Notes shall be issuable only in registered form
without interest coupons and only in denominations of $2,000 and integral
multiples of $1,000 in excess thereof.
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 the Trustee authenticates the
Note, the Note shall be valid nevertheless.
A Note shall not be valid until
an authorized signatory of the Trustee manually signs the certificate of
authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon written
direction of the Company, authenticate and make available for delivery Notes as
set forth in the Appendix.
The Trustee may appoint an
authenticating agent reasonably acceptable to the Company to authenticate the
Notes. Any such appointment shall be evidenced by an instrument
signed by a Trust Officer, a copy of which shall be furnished to the
Company. Unless limited by the terms of such appointment, 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 any Registrar, Paying Agent or agent for service of notices
and demands.
(a) The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or
agency where Notes may be presented for payment (the “Paying
Agent”). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term
“Paying Agent” includes any additional paying agent, and the term “Registrar”
includes any co-registrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Notes and (ii)
the Notes Custodian with respect to the Global Notes (as defined in the
Appendix).
(b) The
Company shall enter into an appropriate agency agreement with any Registrar or
Paying Agent not a party to this Indenture, which shall incorporate the terms of
the TIA. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the
Trustee in writing of the name and address of any such agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to
Section 8.07. The Company or any of its domestically organized
Restricted Subsidiaries may act as Paying Agent or Registrar.
(c) The
Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; provided, however, that no such
removal shall become effective until (i) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company
and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (i) above. The Registrar or Paying Agent may resign
at any time upon written notice to the Company and the Trustee; provided, however, that the Trustee
may resign as Paying Agent or Registrar only if the Trustee also resigns as
Trustee in accordance with Section 8.08.
SECTION 2.04. Paying Agent To Hold Money
in Trust. Prior to 10:00 a.m. (New York City time) each
due date of the principal of and interest on any Note, the Company shall deposit
with, or to an account maintained by, the Paying Agent (or if the Company or a
Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal
and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal of or interest on the Notes and
shall promptly notify the Trustee in writing of any default by the Company in
making any such payment. If the Company or a Subsidiary of the
Company acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying Agent. Upon complying
with this Section 2.04, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
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 Holders. If the Trustee is not the Registrar, the
Company shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
SECTION 2.06. Transfer and
Exchange. The Notes shall be issued in registered form and
shall be transferable only upon the surrender of a Note for registration of
transfer and in compliance with the Appendix. When a Note is
presented to the Registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if its requirements therefor are
met. When Notes are presented to the Registrar with a request to
exchange them for an equal principal amount of Notes of other denominations, the
Registrar shall make the exchange as requested if the same requirements are
met. To permit registration of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the Registrar’s
request. The Company may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section 2.06. The Company
shall not be required to make and the Registrar need not register transfers or
exchanges of Notes selected for redemption (except, in the case of Notes to be
redeemed in part, the portion thereof not to be redeemed) or any Notes for a
period of 15 days before the mailing of a notice of redemption of Notes to be
redeemed.
Prior to the due presentation for
registration of transfer of any Note, the Company, the Guarantors, the Trustee,
the Paying Agent and the Registrar may deem and treat the Person in whose name a
Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and (subject to paragraph 2 of the Notes)
interest, if any, on such Note and for all other purposes whatsoever, whether or
not such Note is overdue, and none of the Company, the Guarantors, the Paying
Agent, the Trustee or the Registrar shall be affected by notice to the
contrary.
Any Holder of a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interest in
such Global Note may be effected only through a book-entry system maintained by
(a) the Holder of such Global Note (or its agent) or (b) any Holder of a
beneficial interest in such Global Note, and that ownership of a beneficial
interest in such Global Note shall be required to be reflected in a book
entry.
All Notes issued upon any transfer or
exchange pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
SECTION 2.07. Replacement
Notes. If a mutilated Note is surrendered to the Registrar
or if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the New York
Uniform Commercial Code are met, such that the Holder (a) satisfies the Company
or the Trustee within a reasonable time after such Holder has notice of such
loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the
Company or the Trustee prior to the Note being acquired by a protected purchaser
as defined in Section 8-303 of the New York Uniform Commercial Code (a
“protected purchaser”) and (c) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee or the Company, such Holder
shall furnish an indemnity bond sufficient in the judgment of the Trustee to
protect the Company, the Trustee, the
Paying Agent and the Registrar from any loss that any of them may suffer if a
Note is replaced. The Company and the Trustee may charge the Holder
for their expenses in replacing a Note. In the event any such
mutilated, lost, destroyed or wrongfully taken Note has become or is about to
become due and payable, the Company in its discretion may pay such Note instead
of issuing a new Note in replacement thereof.
Every replacement Note is an
additional obligation of the Company.
The provisions of this
Section 2.07 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, lost, destroyed or wrongfully taken Notes.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any
transfers between or among Agent Members or beneficial owners of interests in
any Definitive Note or Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
Neither the Trustee nor any Agent
shall have any responsibility for any actions taken or not taken by the
Depository.
SECTION 2.08. Outstanding
Notes. Notes outstanding at any time are all Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section 2.08 as not
outstanding. Subject to Section 13.06, 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, it ceases to be outstanding unless the Trustee and the
Company receive proof satisfactory to them that the replaced Note is held by a
protected purchaser.
If the Paying Agent segregates
and holds in trust, in accordance with this Indenture, on a Redemption Date, the
Stated Maturity Date or maturity date money sufficient to pay all principal and
interest payable on that date with respect to the Notes (or portions thereof) to
be redeemed or maturing, as the case may be, and the Paying Agent is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture, then on and after that date such Notes (or portions
thereof) cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.09. Temporary
Notes. Until Definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes and deliver them in
exchange for temporary Notes upon surrender of such temporary Notes at the
office or agency of the Company, without charge to the Holder.
SECTION 2.10. Cancellation. The
Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the 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 or cancellation and
shall dispose of canceled Notes in accordance with its customary procedures or
deliver canceled Notes to the Company pursuant to written direction by a
Responsible Officer. The Company may not issue new Notes to replace
Notes it has redeemed, paid or delivered to the Trustee for
cancellation. The Trustee shall not authenticate Notes in place of
canceled Notes other than pursuant to the terms of this Indenture.
SECTION 2.11. Defaulted
Interest. If the Company defaults in a payment of interest
on the Notes, the Company shall pay the defaulted interest (plus interest on
such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the Persons who
are Holders on a subsequent special record date. The Company shall
fix or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Holder a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP
Numbers. The Company in issuing the Notes may use
Committee on Uniform Securities Identification Procedures numbers (the “CUSIP
numbers”) (if then generally in use) and, if so, the Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.
SECTION 2.14. Issuance of Additional
Notes. The Company shall be entitled to issue Additional
Notes under this Indenture which shall have substantially identical terms as the
Notes issued on the Closing Date, other than with respect to the date of
issuance, issue price, amount of interest payable on the first payment date
applicable thereto and terms of optional redemption, if any; provided that such issuance
shall be made in compliance with Section 5.04.
With respect to any Additional
Notes, the Company shall set forth in a resolution of its Board of Directors (or
a duly appointed committee thereof) and in an Officers’ Certificate, a copy of
each of which shall be delivered to the Trustee, the following
information:
(a) the
aggregate principal amount of Notes outstanding immediately prior to the
issuance of such Additional Notes;
(b) the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;
(c) the
issue price and the issue date of such Additional Notes and amount of interest
payable on the first payment date applicable thereto; and
(d) if
applicable, that such Additional Notes shall be issuable in whole or in part in
the form of one or more Global Notes and, in such case, the respective
depositaries for such Global Notes, the form of any legend or legends which
shall be borne by such Global Notes in addition to or in lieu of those set forth
in Exhibit A hereto and any circumstances in addition to or in lieu of those set
forth in the Appendix in which any such Global Note may be exchanged in whole or
in party for Additional Notes registered, or any transfer of such Global Notes
in whole or in party may be registered, in the name or names of Persons other
than the depositary for such Global Note or a nominee thereof.
REDEMPTION
SECTION 3.01. Notices to
Trustee. If the Company elects to redeem Notes pursuant
paragraph 6 of the Notes or is obligated to purchase Notes pursuant to
Section 4.09 or Section 4.10, it shall notify the Trustee in writing
of the Redemption Date and the principal amount of Notes to be
redeemed. The redemption provisions of paragraph 6 of the Notes are
fully incorporated herein. The Trustee may conclusively rely on an
Officers’ Certificate and the calculations given therein in making any
redemption in accordance with paragraph 6 of the Notes.
The Company shall give each
notice to the Trustee provided for in this Section 3.01 at least 45 days
before the Redemption Date unless the Trustee consents to a shorter
period. Such notice shall be accompanied by an Officers’ Certificate
and an Opinion of Counsel from the Company to the effect that such redemption
will comply with the conditions herein. If fewer than all the Notes
are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall be not
fewer than 15 days after the date of notice to the Trustee. Any such
notice may be canceled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Notes To Be
Redeemed. If fewer than all the Notes are to be redeemed,
the Trustee shall select the Notes to be redeemed pro rata, by lot or by such
other method as the Trustee in its sole discretion shall deem to be fair and
appropriate. The Trustee shall make the selection from outstanding
Notes not previously called for redemption. The Trustee may select
for redemption portions of the principal amount of Notes that have denominations
larger than $2,000. Notes and portions of them the Trustee selects
shall be in principal amounts of $2,000 or a multiple of $1,000 in excess
thereof. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company promptly of the Notes or portions of Notes to
be redeemed.
(a)
At least 30 days but not more than 60 days before a date for
redemption of Notes, the Company shall mail a notice of redemption by first
class mail to each Holder of Notes to be redeemed at such ▇▇▇▇▇▇’s registered
address.
(b)
Such notice shall identify the Notes to be redeemed and shall
state:
(i)
the Redemption Date;
(ii)
the Redemption Price and the amount of accrued interest
(including amounts to be accreted to principal of the Notes) to the Redemption
Date;
(iii)
the name and address of the Paying
Agent;
(iv)
that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(v)
if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers and principal amount of the particular Notes
to be redeemed;
(vi)
that, unless the Company defaults in making
such redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Notes (or portion
thereof) called for redemption ceases to accrue on and after the Redemption
Date;
(vii) the
CUSIP number, if any, printed on the Notes being redeemed; and
(viii) that
no representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Notes.
(c) At
the Company’s written request delivered at least 10 days prior to the date such
notice is to be given (unless a shorter period shall be acceptable to the
Trustee), the Trustee shall give the notice of redemption in the Company’s name
and at the Company’s expense. In such event, the Company shall
provide the Trustee with the information required by this
Section 3.03.
SECTION 3.04. Effect of Notice of
Redemption. Once notice of redemption is mailed, Notes
called for redemption become due and payable on the Redemption Date and at the
Redemption Price stated in the notice. Upon surrender to the Paying
Agent, such Notes shall be paid at the Redemption Price stated in the notice,
plus accrued interest to the Redemption Date; provided, however, that if the
Redemption Date is after a Regular Record Date and on or prior to the Interest
Payment Date, the accrued interest shall be payable to the Holder of the
redeemed Notes registered on the relevant Regular Record
Date. Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other
Holder.
SECTION 3.05. Deposit of Redemption
Price. Prior to 10:00 a.m. (New York City time) on
the Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the Redemption Price of, and accrued interest on, all
Notes to be redeemed on that date other than Notes or portions of Notes called
for redemption that have been delivered by the Company to the Trustee for
cancellation. On or after the Redemption Date, interest shall cease
to accrue on Notes or portions thereof called for redemption so long as the
Company has deposited with the Paying Agent funds sufficient to pay the
principal of, plus accrued and unpaid interest on, the Notes
to be redeemed, unless the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture.
SECTION 3.06. Notes Redeemed in
Part. Upon surrender of a Note that is redeemed in part,
the Company shall execute and the Trustee shall authenticate for the Holder (at
the Company’s expense) a new Note equal in principal amount to the unredeemed
portion of the principal amount of the Note surrendered.
AFFIRMATIVE
COVENANTS
(a) The
Company shall pay the principal of and interest on the Notes on or before the
dates and in the manner provided in the Notes and in this
Indenture. Principal of and interest on the Notes shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal of and
interest on the Notes then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Holders on that date
pursuant to the terms of this Indenture.
(b) The
Company shall pay interest on overdue principal of the Notes at the rate
specified therefor in the Notes and shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
SECTION 4.02. Commission
Reports. Whether or not required by the reporting
requirements of Section 13 or 15(d) of the Exchange Act, so long as the
Notes are outstanding, the Company shall file with the Commission and provide
the Trustee, Holders and prospective Holders (upon request) within 15 days after
it files or is required to file them with the Commission, copies of its annual
report and the information, documents and other reports that are specified in
Sections 13 and 15(d) of the Exchange Act. In addition, the
Company shall furnish to the Trustee and the Holders, promptly upon their
becoming available, copies of the annual report to shareholders and any other
information provided by the Company to its public shareholders
generally. The Company also shall comply with the other provisions of
TIA § 314(a). The receipt by the Trustee of any such reports and
documents pursuant to this Section shall not constitute notice or
constructive notice of any information contained in such documents or
determinable from information contained in such documents, including the
Company’s compliance with any covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).
SECTION 4.03. Preservation of Corporate
Existence. Except as otherwise permitted by Article 6, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (a) its corporate existence, and the corporate, limited
liability company, 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 (it being understood that legal name change
may be made based upon reasonable discretion of the Company) and (b) the rights
(charter and statutory) and licenses of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall
not be required to preserve or keep in full force and effect any such right or
license, or the corporate, limited liability company, partnership or other
existence of any of its Restricted Subsidiaries if the loss thereof does not and
would not reasonably be expected to be materially adverse to the Company and its
Subsidiaries taken as a whole.
SECTION 4.06. Compliance
Certificate. The Company shall deliver to the Trustee
within 90 days of the end of the fiscal year of the Company, an Officers’
Certificate made on behalf of the Company stating that in the course of the
performance by the signers of their duties as officers of the Company they would
normally have knowledge of any Default and whether or not the signers know of
any Default that occurred during such period. If they do, the
certificate shall describe the Default, its status and what action the Company
is taking or proposes to take with respect thereto. The Company also
shall comply with Section 314(a)(4) of the TIA.
(a)
Upon the occurrence of a Change of Control, each Holder will
have the right to require the Company to purchase all or any part of such
Holder’s Notes at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, as of the Change of Control
Payment Date (the “Change of Control Payment”) in accordance with the terms set
forth below (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date); provided, however, that,
notwithstanding the occurrence of a Change of Control, the Company shall not be
obligated to purchase the Notes pursuant to this Section 4.09 in the event
that it has exercised its right to redeem all the Notes under paragraph 5 of the
Notes. The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
and regulations in connection with the purchase of Notes pursuant to this
Section 4.09. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 4.09, the
Company will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under this Section 4.09(a)
by virtue thereof.
(b)
Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder with a copy to the Trustee (the
“Change of Control Offer”) stating:
(i)
that a Change of Control has occurred and that
such Holder has the right to require the Company to purchase all or a portion of
such Holder’s Notes at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of Holders of record on
the relevant record date to receive interest on the relevant interest payment
date);
(ii)
the circumstances and relevant facts and financial information regarding
such Change of Control;
(iii)
the purchase date (which shall be no earlier than 10
Business Days nor later than 60 days from the date such notice is mailed (the
“Change of Control Payment Date”); and
(iv)
the instructions determined by the Company, consistent with
this Section 4.09, that a Holder must follow in order to have its Notes
purchased.
(c)
On the Change of Control Payment Date,
the Company shall, to the extent lawful, (i) accept for payment all Notes or
portions thereof properly tendered pursuant to the Change of Control Offer and
(ii) pay to the Holders of Notes or portions thereof so tendered an amount equal
to the Change of Control Payment in respect of all Notes or portions thereof so
tendered. The Company shall promptly mail or deliver by wire transfer
to each Holder of Notes so tendered the Change of Control Payment for such
Notes, and the Company shall promptly execute 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, however, that each such new Note
shall be in a principal amount of $2,000 or a multiple of $1,000 in excess
thereof.
(d)
In the event that at the time of such Change of Control the
terms of any Senior Indebtedness restrict or prohibit the repurchase of Notes
pursuant to this Section 4.09, then prior to the mailing of the notice to
Holders provided for in Section 4.09(b) but in any event within 30 days
following any Change of Control, the Company shall (i) repay in full all
such Senior Indebtedness or, if doing so will allow the purchase of Notes, offer
to repay in full all such Senior Indebtedness and repay the Senior Indebtedness
owing to each Holder thereof who has accepted such offer, or (ii) obtain
the requisite consent under such Senior Indebtedness to permit the repurchase of
the Notes as provided for in Section 4.09(c).
(e) 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 4.09 and such third party purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer.
Any Change of Control Offer may
be conditioned on the consummation of a Change of Control.
| (a) | In the event that, pursuant to Section 5.05, the Company shall be required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it |
shall
follow the procedures specified in this Section 4.10. Each Asset
Sale Offer shall remain open for not less than ten (10) Business Days nor more
than sixty (60) days immediately following its commencement,
except to the extent that a longer period is required by Applicable Law (the
“Offer Period”).
| (b) | Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to each of the Holders which shall contain all |
instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all
Holders. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:
| (i) | that the Asset Sale Offer is being made pursuant to this Section 4.10 and Section 5.05 and the length of time the Asset Sale Offer shall remain open; |
| (ii) | the Offer Amount and the Purchase Date; |
| (iii) | that Holders electing to have a Note purchased pursuant to any Asset Sale 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 to the Company at the
address specified in the notice at least three Business Days before the Purchase
Date;
| (iv) | that Holders shall be entitled to withdraw their election if the Company receives, not later than the second Business Day prior to the expiration of the Offer |
Period, a
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 ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased;
and
| (v) | other information required to be included pursuant to Section 3.03. |
| (c) | On or before the Business Day immediately after the termination of the Offer Period (the “Purchase Date”), the Company shall, to the extent lawful, accept for |
payment,
on a pro rata basis to
the extent necessary, Notes or portions thereof tendered pursuant to the Asset
Sale Offer with an aggregate principal amount equal to the aggregate principal
amount required to be purchased pursuant to Section 5.05 plus accrued and
unpaid interest, if any, thereon to the Purchase Date (the “Offer Amount”) or,
if the aggregate principal amount of Notes tendered is less than the Offer
Amount, the Company shall purchase all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made. The Company shall promptly
(but in any case not later than five (5) Business Days after the Purchase Date)
mail or deliver by wire transfer 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 deliver it 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.
SECTION 4.12. Further
Assurances. The Company shall, upon the request of
Holders, execute and deliver such further instruments and do such further acts
as may be reasonably necessary or proper to carry out more effectively the
provisions of this Indenture.
SECTION 4.13. Future
Guarantors. Subject to Section 10.02(b), the Company
shall cause each Restricted Subsidiary that becomes a guarantor of the
borrowings of the Company under the Credit Agreement to become a Guarantor, and,
if applicable, to execute and deliver to the Trustee a supplemental guarantee in
the form of Exhibit B pursuant to which such Restricted Subsidiary will
guarantee payment of the Notes.
NEGATIVE
COVENANTS APPLICABLE TO COMPANY AND ITS SUBSIDIARIES
SECTION 5.01. Stay, Extension and Usury
Laws. The Company 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 its obligations under the Notes or
this Indenture, and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
(to the extent that it may lawfully do so) that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Holders, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
(a)
The Company shall not, and shall not permit any
Restricted Subsidiary, directly or indirectly, to
(i)
declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of Capital Stock (including any payment in
connection with a merger or consolidation involving the Company or any of its
Restricted Subsidiaries), except (x) dividends or distributions payable solely
in its Capital Stock (other than Disqualified Capital Stock or Capital Stock
convertible into or exchangeable for Disqualified Capital Stock) and (y)
dividends or distributions payable to the Company or to a Restricted Subsidiary
(and, if the Restricted Subsidiary making such dividend or distribution has
equity holders other than the Company or another Restricted Subsidiary, to such
equity holders on a pro rata basis),
(ii)
purchase, redeem or otherwise acquire for value any shares of
Capital Stock of the Company now or hereafter outstanding held by a Person other
than the Company or another Restricted Subsidiary,
(iii)
make any payment or prepayment of principal or premium, if
any, or any redemption, exchange, purchase, retirement, defeasance, sinking fund
or other payment, in each case, with respect to, any Subordinated Indebtedness
of the Company prior to scheduled maturity, scheduled payment, scheduled
repayment or scheduled sinking fund payment
thereof (except for any redemption, exchange, purchase, retirement, defeasance,
sinking fund or other payment within twelve months of the final maturity
thereof), or
(iv)
make any Restricted Investments
(the
items described in clauses (i), (ii), (iii) and (iv) are referred to as
“Restricted Payments”); except that the Company or any Restricted Subsidiary of
the Company may make a Restricted Payment if at the time of and after giving
effect to such Restricted Payment:
(A)
no Default or Event of Default will have occurred and be
continuing (or would result therefrom);
(B)
the Company could Incur at least $1.00 of additional
Indebtedness pursuant to Section 5.04(a) hereof; and
(C) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after
February 16, 2005 (excluding Restricted Payments permitted by
Section 5.02(b)(i) through (iv), inclusive, (vii), (viii) and (ix)), would
be less than the sum, without duplication, of: (1) Consolidated
EBITDA minus 150% of Consolidated Interest Expense for the period (taken as one
accounting period) from January 1, 2005 to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements of the
Company and its Restricted Subsidiaries are available at the time of such
Restricted Payment; (2) to the extent that any Restricted Investment that was
made after February 16, 2005 is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (x) the cash return of capital with respect to
such Restricted Investment (less the cost of disposition, if any) and (y) the
initial amount of such Restricted Investment; (3) the amount equal to the net
reduction in Investments in Unrestricted Subsidiaries resulting from the
redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued as
provided in the definition of “Investment”) subsequent to October 5, 2009; (4)
net cash dividends or other net cash distributions paid to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries subsequent to October 5,
2009; (5) the aggregate net cash proceeds and fair market value of property
received by the Company from the issue or sale of its Capital Stock (other than
Disqualified Capital Stock to the extent it remains Disqualified Capital Stock)
or other capital contributions subsequent to February 16, 2005 (other than
net cash proceeds or property (x) received from an issuance or sale of such
Capital Stock to a Subsidiary of the Company or an employee stock ownership
plan, option plan or similar trust to the extent such sale to an employee stock
ownership plan, option plan or similar trust is financed by loans from or
guaranteed by the Company or any Restricted Subsidiary or (y) applied for the
purposes of clause (i) of Section 5.02(b)); and (6) aggregate net
cash proceeds received by the Company from the issue or sale since
February 16, 2005 of debt securities that have been converted into Capital
Stock (other than Disqualified Capital Stock to the extent it remains
Disqualified Capital Stock) of the Company.
(b)
The provisions of Section 5.02(a) will not prohibit
any of the following:
(i)
the defeasance, redemption or repurchase of (x) Subordinated
Indebtedness of the Company permitted to be Incurred under this Indenture with
the net cash proceeds from an Incurrence of Permitted Refinancing Indebtedness
or the substantially concurrent sale (other than to a Subsidiary of the Company)
of Capital Stock of the Company or (y) Convertible Preferred Stock or other
Capital Stock of the Company with the Net Cash Proceeds from the substantially
concurrent sale (other than to a Subsidiary of the Company) of Capital Stock of
the Company (other than Disqualified Capital Stock);
(ii)
the making by the Company of regularly scheduled payments in
respect of any Subordinated Indebtedness of the Company permitted to be Incurred
under this Indenture in accordance with the terms of, and only to the extent
required by, and subject to the subordination provisions contained in, any
agreement pursuant to which such Subordinated Indebtedness was
issued;
(iii)
the making by the Company and its Restricted
Subsidiaries of Permitted Acquisitions;
(iv)
the making by the Company of regularly scheduled dividend
payments in respect of the Convertible Preferred Stock of the Company in
accordance with the terms thereof;
(v)
dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied with
Section 5.02(a);
(vi)
the repurchase or other acquisition of shares of, or options to purchase
shares of, common stock of the Company or any of its Subsidiaries; provided, however, that the aggregate
amount of such repurchases shall not exceed $10,000,000 in any calendar
year;
(vii)
the issuance of common stock of the Company to officers,
directors and employees as part of compensation arrangements;
(viii)
the making by the Company and its Restricted Subsidiaries of other
Restricted Payments not to exceed $25,000,000 in the aggregate since
February 16, 2005; and
(ix)
the defeasance, redemption or repurchase of Cincinnati
Bell Telephone Company LLC’s Cincinnati Bell Telephone Notes or any Permitted
Refinancing Indebtedness related thereto.
(c)
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) proposed
to be transferred by the Company or such Subsidiary, as the case may be,
pursuant to the Restricted Payment.
SECTION 5.03. Dividend and Other Payment
Restrictions Affecting Subsidiaries. The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary of the
Company to: (a) pay dividends or
make any other distributions to the Company with respect to any Capital Stock of
such Restricted Subsidiary or any other interest or participation in, or
measured by, such Restricted Subsidiary’s profits, or pay any Indebtedness or
other obligations owed by such Restricted Subsidiary to the Company or any of
the Company’s other Restricted Subsidiaries; (b) make loans or advances to the
Company or any of the Company’s other Restricted Subsidiaries; or (c) transfer
any of such Restricted Subsidiary’s property or assets to the Company or any of
the Company’s other Restricted Subsidiaries, except, in each case, for such
encumbrances or restrictions existing under or by reason of: (i)
existing Indebtedness and agreements, as in effect at or entered into on the
Closing Date; (ii) the Credit Agreement as in effect as of the Closing
Date, and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or Refinancings thereof permitted
hereunder; provided, however, that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or Refinancings are not materially more restrictive
with respect to such provisions than those contained in the Credit Agreement on
the Closing Date; (iii) this Indenture and the Notes; (iv) Applicable
Law; (v) any encumbrance or restriction (1) that restricts in a
customary manner the subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract, or (2) contained
in security agreements securing Indebtedness of the Company or a Restricted
Subsidiary to the extent such encumbrance or restriction restricts the transfer
of the property subject to such security agreements; (vi) capital leases or
purchase money obligations for property acquired in the Ordinary Course of
Business that impose restrictions of the nature described in clause (v)
above on the property so acquired; (vii) Permitted Refinancing
Indebtedness; provided, however, that such restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are not materially more restrictive than those contained in the agreements
governing the Indebtedness being Refinanced; (viii) any instrument
governing Indebtedness, Capital Stock or assets of a Person acquired by the
Company or any of the Company’s Restricted Subsidiaries as in effect at the time
of such acquisition (except to the extent such instrument was created or such
Indebtedness was Incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be Incurred; (ix) Secured Indebtedness otherwise permitted to be Incurred
pursuant to this Indenture that limits the right of the debtor thereunder to
dispose of the assets securing such Indebtedness; (x) contracts for the sale of
assets, including customary restrictions with respect to a Subsidiary pursuant
to an agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary; (xi)
restrictions on deposits or minimum net worth requirements imposed by customers
under contracts entered into in the Ordinary Course of Business; (xii) customary
provisions in joint venture agreements and customary provisions in licenses and
leases and other similar agreements entered into in the Ordinary Course of
Business; (xiii) any encumbrance or restriction contained in an agreement
evidencing Indebtedness of a Restricted Subsidiary permitted to be Incurred
subsequent to the Closing Date pursuant to Section 5.04; (xiv) any encumbrances
or restrictions of the type referred to in clauses (a), (b) and (c) above
imposed by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (i) through (xiii) above;
provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no 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; or (xv) any encumbrance
or restriction in any agreement or instrument of a Receivables Subsidiary
governing or in connection with a Qualified Receivables
Transaction.
(a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
Incur, directly or indirectly, any Indebtedness (including Acquired
Indebtedness) and shall not permit any of its Restricted Subsidiaries that is
not a Guarantor to issue any Preferred Stock; provided, however, that the Company and
its Restricted Subsidiaries may Incur Indebtedness (including Acquired
Indebtedness), and the Restricted Subsidiaries that are not Guarantors may issue
Preferred Stock, if on the date of such Incurrence or issuance and after giving
effect thereto, the Consolidated Adjusted Debt to EBITDA Ratio is less than 6.00
to 1.00 (this test being referred to herein as the “Leverage
Test”). For the purpose of the calculation of the Leverage Test, with
respect to any period included in such calculation, Consolidated EBITDA, the
components of Consolidated Interest Expense and Consolidated Adjusted Debt shall
be calculated with respect to such period by the Company in good faith on a pro
forma basis (including and consistent with Permitted Adjustments), giving effect
to any Permitted Acquisition, Asset Disposition or Incurrence or redemption or
repayment of Indebtedness that has given rise to the need for such calculation,
has occurred during such period or has occurred after such period and on or
prior to the date of such calculation.
(b)
The foregoing provisions shall not apply
to:
(i)
the Incurrence by the Company and its
Restricted Subsidiaries of the Existing Indebtedness;
(ii) the
Incurrence by the Company and its Restricted Subsidiaries of the Indebtedness
represented by the Notes and the Guarantees (not including any Additional
Notes);
(iii) (A)
Purchase Money Indebtedness and mortgage financings (excluding Capital Lease
Obligations and Synthetic Lease Obligations) hereafter Incurred by the Company
or any of its Restricted Subsidiaries in an aggregate principal amount that does
not exceed $70,000,000 at any one time outstanding and (B) Indebtedness
hereafter incurred by the Company or any of its Restricted Subsidiaries under
any Channel Financing Facility in an aggregate principal amount that, when taken
together with the aggregate then outstanding principal amount of Indebtedness
incurred under all other Channel Financing Facilities of the Company and its
Restricted Subsidiaries incurred under this clause (iii), does not exceed
$30,000,000 at any one time outstanding;
(iv)
the Incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to extend, Refinance, renew, replace, defease or
refund, Indebtedness that was permitted by this Indenture to be Incurred by the
Company or such Restricted Subsidiary;
(v)
the Incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness (A) between or among the
Company and any Restricted Subsidiaries of the Company and (B) consisting of
debits and credits among the Company and its Subsidiaries pursuant to a
Centralized Cash Management System; provided, however, that (1) any
intercompany Indebtedness which is borrowed by the Company or a Guarantor from a
Restricted Subsidiary that is not a Guarantor shall be expressly subordinated to
the Notes or such Guarantor’s Guarantee and (2) (x) 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 of the Company, or (y)
any sale or other transfer of any such Indebtedness to a Person other than the
Company or a Restricted Subsidiary of the Company, or a lender or agent upon
exercise of remedies under a pledge of such Indebtedness under the Credit
Agreement, shall be deemed, in each case of the foregoing clauses (2)(x) and
(y), to constitute an Incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be;
(vi)
the Incurrence by the Company or any of its Restricted Subsidiaries
of Interest Swap Obligations that are Incurred for the purpose of fixing or
hedging interest rate risk with respect to any Indebtedness that is permitted by
the terms of this Indenture to be outstanding;
(vii)
Indebtedness of the Company or any Restricted Subsidiary under the
Credit Agreement in an aggregate amount at any time outstanding not to exceed
$900,000,000, less, to the extent a permanent repayment and/or commitment
reduction is required thereunder as a result of such application, the aggregate
amount of Net Proceeds applied to repayments under the Credit Agreement in
accordance with Section 5.05;
(viii)
the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under Currency Agreements;
(ix)
the Incurrence by the Company or any of its Restricted
Subsidiaries of 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, in order to provide security for
workers’ compensation claims, payment obligations in connection with
self-insurance or similar requirements in the Ordinary Course of
Business;
(x)
the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of performance bonds, bankers’
acceptances, workers’ compensation claims, completion guarantees, letters of
credit surety or appeal bonds, payment obligations in connection with
self-insurance or similar obligations Incurred in the Ordinary Course of
Business;
(xi)
the Guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be Incurred by another provision of this
Section 5.04;
(xii)
Indebtedness arising from agreements of the Company or a Restricted
Subsidiary of the Company providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred in connection with an Asset
Disposition or acquisition permitted by this Indenture or other sale or
disposition of assets permitted under this Indenture;
(xiii)
Indebtedness of a Restricted Subsidiary Incurred and outstanding on
or prior to the date on which such Restricted Subsidiary was acquired by the
Company (other than Indebtedness Incurred in contemplation of, in connection
with, as consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Subsidiary of
or was otherwise acquired by the Company); provided, however, that on the date
that such Restricted Subsidiary is acquired by the Company, the Company would
have been able to Incur $1.00 of additional Indebtedness under the first
paragraph of this Section 5.04 pursuant to the Leverage Test after giving
effect to the Incurrence of such Indebtedness pursuant to this
clause (xiii);
(xiv)
(A) Indebtedness represented by Capital Lease Obligations (other than
Capital Lease Obligations described in the following clause (B)) and Synthetic
Lease Obligations hereafter Incurred by the Company or any of its Restricted
Subsidiaries in an aggregate principal amount that, when taken together with the
Remaining Present Value of such outstanding Capital Lease Obligations and
Synthetic Lease Obligations relating to Sale and Leaseback Transactions entered
into in accordance with Section 8.05(b)(ii) of the Credit Agreement (as in
effect on the date of this Indenture), does not exceed $150,000,000 at any time
outstanding and (B) Indebtedness represented by Capital Lease Obligations in
connection with the Data Center Sale and Leaseback Transactions and the Wireless
Tower Sale and Leaseback Transactions and in each case otherwise in compliance
with the conditions set forth in the applicable definition thereof; provided that (x) the
aggregate outstanding Remaining Present Value of (I) all leases entered into in
connection with all Data Center Sale and Leaseback Transactions, plus (II) all
leases entered into in connection with all Wireless Tower Sale and Leaseback
Transactions, plus (y) all Indebtedness represented by Capital Lease Obligations
and Synthetic Lease Obligations entered into under clause (A) does not at any
time exceed $250,000,000 in the aggregate;
(xv)
the Incurrence of other Indebtedness not to exceed $100,000,000 in aggregate
principal amount at any time outstanding; and
(xvi) the
Incurrence by a Receivables Subsidiary of Indebtedness in a Qualified
Receivables Transaction that is without recourse (other than pursuant to
representations, warranties, covenants, indemnities and performance guarantees
customarily entered into in connection with a Receivables financing) to the
Company or to any Restricted Subsidiary of the Company or its assets (other than
such Receivables Subsidiary and its subsidiaries and assets), in an amount not
to exceed $150,000,000 in aggregate principal amount at any time
outstanding.
(c)
For purposes of determining compliance with this Section 5.04, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness
described in Sections 5.04(b)(i) through (xvi) or is entitled to be Incurred
pursuant to Section 5.04(a), the Company shall, in its sole discretion,
classify (or later reclassify) such item of Indebtedness in any manner that
complies with this Section 5.04 and will only be required to include the
amount and type of such Indebtedness in one of such clauses of
Section 5.04(b) or pursuant to Section 5.04(a); provided that Indebtedness
outstanding under the Credit Agreement as of the Closing Date shall be deemed to
have been Incurred pursuant to clause (vii) of
Section 5.04(b). Accrual of interest, accretion of accreted
value, amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms as the
Indebtedness on which such interest is being paid and any other issuance of
securities paid-in-kind shall not be deemed to be an Incurrence of Indebtedness
for purposes of this Section 5.04, but such amounts shall be included in
Consolidated Adjusted Debt to the extent provided for in such
definition. In addition, the Company may, at any time, change the
classification of an item of Indebtedness (or any portion thereof) to any other
clause of Section 5.04(b) or to Indebtedness properly Incurred under
Section 5.04(a), provided
that the Company would be permitted to Incur such item of Indebtedness
(or portion thereof) pursuant to such other clause of Section 5.04(b) or
Section 5.04(a), as the case may be, at such time of
reclassification.
(a) The
Company shall not, and shall not permit any Restricted Subsidiary to, consummate
any Asset Disposition (provided that the sale,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company and its Restricted Subsidiaries as a whole shall be governed by
the provisions of Article 6 and not by the provisions of this
Section 5.05) unless: (i) the consideration received is at least
equal to the fair market value of such assets (except as the result of (x) any
foreclosure or sale by the lenders under the Credit Agreement or (y) Net
Proceeds received from an insurer or a Governmental Authority, as the case may
be, in the event of loss, damage, destruction or condemnation); and (ii) in the
case of Asset Dispositions that are not Permitted Asset Swaps, at least 75% of
the consideration thereof received by the Company or such Restricted Subsidiary
is in the form of cash and Cash Equivalents; provided, however, that for purposes
of this Section 5.05(a), the following are deemed to be cash: (x) any
liabilities (as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet) of the Company or any Restricted Subsidiary that are
assumed by the transferee of any such assets pursuant to any arrangement
releasing the Company or such Restricted Subsidiary from further liability and
(y) any securities, 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 or Cash Equivalents within 90
days after the Asset Disposition (to the extent of the cash
received).
(b)
Within 365 days after the receipt of any Net Proceeds from an
Asset Disposition, the Company or the Restricted Subsidiary making such Asset
Disposition, as the case may be, may, at its option, apply such Net Proceeds
(i) to permanently reduce Senior Indebtedness or any
Indebtedness of the Restricted Subsidiaries of the Company which are not
Guarantors, or to purchase the Notes (with the consent of the Holders thereof to
the extent required) or Indebtedness ranking pari passu with the Notes
(and to correspondingly reduce commitments with respect thereto, to the extent
applicable) or (ii) to the acquisition of a controlling interest in another
business, the making of Capital Expenditures or the investment in or acquisition
of other long-term
assets, in each case, in the same or a similar line of business as the Company
and its Subsidiaries engaged in at the time such assets were sold or in a
business reasonably related, complementing or ancillary thereto or a reasonable
expansion thereof. Pending the final application of any such Net
Proceeds, the Company may temporarily reduce revolving credit Indebtedness under
the Credit Agreement or otherwise invest such Net Proceeds in any manner that is
not prohibited by this Indenture. Any Net Proceeds from Asset
Dispositions that are not applied or invested as provided in the first sentence
of this paragraph shall be deemed to constitute “Excess
Proceeds.” When the aggregate amount of Excess Proceeds exceeds
$25,000,000, the Company shall make an offer (an “Asset Sale Offer”) pursuant to
Section 4.10 to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the outstanding principal amount thereof, plus accrued and
unpaid interest thereon to the date of purchase, in accordance with the
procedures set forth in Section 4.10; provided, however, that if the Company
elects (or is required by the terms of any other Indebtedness (other than
Subordinated Indebtedness or Disqualified Capital Stock) of the Company), such
Asset Sale Offer may be made ratably to purchase the Notes and other
Indebtedness (other than Subordinated Indebtedness or Disqualified Capital
Stock) of the Company. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
(c)
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to this
provision. To the extent that the provisions of any securities laws
or regulations conflict with this provision, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this provision by virtue thereof.
SECTION 5.06. Transactions with
Affiliates. The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, enter into or permit to exist
any transaction (including the purchase, sale, lease or exchange of any property
or the rendering of any management, consulting, investment banking, advisory or
other services) with any Affiliate of the Company (each an “Affiliate
Transaction”), except:
(a) the
performance of any agreements as in effect as of the Closing Date or the
consummation of any transaction contemplated thereby (including pursuant to any
amendment thereto so long as any such amendment is not disadvantageous to the
Holders of the Notes in any material respect);
(b) transactions
(i) the terms of which are not materially less favorable to the Company or such
Restricted Subsidiary than would be obtained in a comparable arm’s length
transaction with a Person that is not an Affiliate of the Company and (ii) with
respect to which the Company delivers to the Trustee (A) with respect to any
Affiliate Transaction involving aggregate consideration in excess of
$25,000,000, a resolution of the Board of Directors of the Company set forth in
an Officers’ Certificate certifying that such Affiliate Transaction complies
with clause (i) above and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of Directors of the
Company, and (B) with respect to any Affiliate Transaction or series of
Affiliate Transactions involving in excess of $50,000,000, an opinion as to the
fairness of such Affiliate
Transaction to the Company from a financial point of view issued by an
Independent Qualified Party;
| (c) | payment of customary compensation to officers, employees, consultants and investment bankers for services actually rendered to the Company or such |
Restricted
Subsidiary, including indemnity;
| (d) | payment of director’s fees plus expenses and customary indemnification of directors; |
| (e) | the payment of the fees, expenses and other amounts payable by the Company and its Restricted Subsidiaries in connection with the offering of the Notes; |
| (f) | Restricted Payments permitted by Section 5.02 and Permitted Investments; |
| (g) | transactions (x) between or among the Company and its Restricted Subsidiaries, (y) between or among the Restricted Subsidiaries and (z) between or among |
the
Company and/or its Subsidiaries pursuant to a Centralized Cash Management
System;
| (h) | any licensing agreement or similar agreement entered into in the Ordinary Course of Business relating to the use of technology or intellectual property |
between
any of the Company and its Subsidiaries, on the one hand, and any company or
other Person which is an Affiliate of the Company or its Subsidiaries by virtue
of the fact that the Company or any of its Subsidiaries has made an Investment
in or owns any Capital Stock of such company or other Person, on the other hand,
which is fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the Board of Directors, or is on terms at least as favorable as
might reasonably have been obtained at such time from an unaffiliated
party;
| (i) | the issuance of payments, awards or grants, in cash or otherwise, pursuant to, or the funding of, employment arrangements approved by the Board of |
Directors
of the Company in good faith and customary loans and advances to employees of
the Company, or any Restricted Subsidiary of the Company to the extent otherwise
permitted in this Indenture;
| (j) | sales, contributions, conveyances and other transfers of Receivables and related assets of the type specified in the definition of Qualified Receivables |
Transaction
to a Receivables Subsidiary or any other similar transactions in connection with
any Qualified Receivables Transaction; and
| (k) | transactions permitted under the indenture governing the 7% Notes or the 8¼% Notes. |
SECTION 5.07. Limitation on
Liens. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, Incur or permit to exist any
Lien (other than (a) Liens securing Senior Indebtedness and (b) Permitted
Liens) on any asset now owned or hereafter acquired to secure any Indebtedness
of the Company or such Restricted Subsidiary; provided that the Company or
any Restricted Subsidiary may create, incur or assume Liens to secure
any
Indebtedness or a Guarantee thereof, so long as concurrently with the incurrence
or assumption of such Lien the Company or such Restricted Subsidiary effectively
provides that the Notes shall be secured equally and ratably with (or prior and
senior to, in the case of Liens with respect to Subordinated Indebtedness) such
Indebtedness, so long as such Indebtedness shall be so secured.
SECTION 5.08. Limitation on Issuances and
Sales of Capital Stock of Subsidiaries. The Company shall
not, and shall not permit any Restricted Subsidiary to, transfer, convey, sell,
issue, lease or otherwise dispose of any Capital Stock of any Restricted
Subsidiary to any Person (other than to the Company or another Restricted
Subsidiary of the Company), unless such transfer, conveyance, sale, lease or
other disposition shall be made in accordance with the provisions of
Section 5.05, including the provisions of Section 5.05 governing the
application of Net Proceeds from such transfer, conveyance, sale, lease or other
disposition; provided,
however, that this
Section 5.08 shall not restrict any pledge of Capital Stock of the Company
and its Restricted Subsidiaries securing Indebtedness under the Credit Agreement
or other Indebtedness permitted to be secured by Section 5.07.
SECTION 5.10. Conduct of
Business. The Company shall not, and shall not permit any
of its Subsidiaries directly or indirectly to, engage in any business other than
business of the type engaged in at the date hereof and any business reasonably
related, complementing or ancillary thereto or a reasonable expansion
thereof.
SECTION 5.13. Fall Away
Event. In the event of the occurrence of a Fall Away
Event, Sections 4.13, 5.02, 5.03, 5.04, 5.05, 5.06, 5.08, 5.10
and 6.01(c) and the definitions relevant thereto shall each no longer be in
effect for the remaining term of the Notes and any Note Guarantees then in
effect shall be automatically released.
SUCCESSOR
COMPANY
Notwithstanding anything in this
Indenture to the contrary:
SECTION 6.01. Merger, Consolidation, or
Sales of Assets of the Company. The Company shall not
consolidate with or merge with or into (whether or not the Company is the
surviving entity), or directly and/or indirectly through its Subsidiaries sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of the properties and assets of the Company and its Restricted Subsidiaries
taken as a whole in one or more related transactions to, any other Person,
unless:
(a) the
resulting, surviving or transferee Person (the “Successor Company”) shall be a
corporation or other legal entity organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and the
Successor Company (if not the Company) shall expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the Obligations of the Company under the Notes and this
Indenture;
(b) immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Company or
such Restricted Subsidiary at the time of such transaction), no Default shall
have occurred and be continuing;
(c) immediately
after giving effect to such transaction, either (i) the Successor Company
would be able to Incur an additional $1.00 of Indebtedness pursuant to
Section 5.04(a); or (ii) the Consolidated Adjusted Debt to EBITDA Ratio
would be equal to or less than such ratio immediately prior to giving effect to
such transaction; and
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) are permitted by and comply with this
Indenture.
Notwithstanding the
foregoing: (i) any Restricted Subsidiary may consolidate with, merge
into or transfer all or part of its properties and assets to the Company or any
Guarantor and (ii) the Company may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Company in another jurisdiction to
realize tax or other benefits.
SECTION 6.02. Successor Company
Substituted. The Successor Company shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture, but the predecessor Company in the case of a conveyance,
transfer or lease of all or substantially all its assets shall not be released
from the obligation to pay the principal of and interest on the
Notes.
EVENTS
OF DEFAULT; REMEDIES SECTION
SECTION 7.01. Events of
Default. An Event of Default shall exist upon the
occurrence of any of the following specified events (each an “Event of
Default”):
(a)
a default in any payment of interest on any Note when due and payable and
such default continues for a period of 30 days;
(b)
a default in any payment of principal of any Note when due and payable at
its Stated Maturity, upon required redemption or repurchase, upon declaration or
otherwise;
(c) the
failure of the Company or any Subsidiary to comply with its obligations under
Article 6 of this Indenture;
(d)
the failure by the Company or any Subsidiary to comply with any of its
obligations under Section 4.02, 4.09 (other than a failure to purchase
Notes), 4.13 or Article 5 of this Indenture and such failure continues for
60 days after a Notice of Default;
(e)
the failure by the Company or any Subsidiary to comply with its other agreements
contained in the Notes or this Indenture and such failure continues for 60 days
after a Notice of Default;
(f) the
failure by the Company or any Subsidiary to pay any Indebtedness within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $35,000,000 or its foreign
currency equivalent;
(g)
the rendering of any judgment or decree for the payment of money in excess
of $35,000,000 or its foreign currency equivalent against the Company or a
Subsidiary if such judgment or decree remains outstanding for a period of 60
days following such judgment and is not discharged, waived or stayed, and is not
adequately covered by insurance or indemnities which have been cash
collateralized;
(h)
the Company or any Significant Subsidiary, within the meaning of Bankruptcy
Law:
(i)
commences a voluntary case or proceeding,
(ii)
consents to the entry of a decree or order for relief against it in an
involuntary case or proceeding or to the commencement of any case or
proceeding against it,
(iii)
consents to the filing of a petition or to the appointment of or
taking possession by a Custodian (as defined below) of it or for all or any
substantial part of its property,
(iv)
makes or consents to the making of a general assignment for
the benefit of its creditors, or
(v)
generally is not paying, or admits in writing that it is
not able to pay its debts as they become due; or
(i)
a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is
for relief against the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding;
(ii)
appoints a Custodian of the Company or any
of its Significant Subsidiaries or for all or any substantial part of the
property of the Company or any of its Subsidiaries or approves as properly filed
a petition seeking reorganization, arrangement, adjustment or composition of or
in respect of any of the foregoing; or
(iii) orders
the winding up or liquidation of the Company or any of its Significant
Subsidiaries or adjudges any of them as bankrupt or insolvent.
The term “Custodian” means any
custodian, receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
The foregoing will constitute Events of
Default whatever the reason for any such Event of Default and whether it is
voluntary or involuntary or is effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
However, a default under Section
7.01(d) or (e) will not constitute an Event of Default until the Trustee
notifies the Company or the Holders of at least 25% in principal amount of the
outstanding Notes notify the Company and the Trustee of the default and the
Company does not cure such default within the time specified in clause 7.01(d)
or (e) after receipt of such notice.
SECTION 7.02. Acceleration. If
an Event of Default (other than an Event of Default specified in
Section 7.01(h) or (i) with respect to the Company) occurs and is
continuing, the Trustee or the Holders of 25% or more in principal amount of the
then outstanding Notes, may, by notice to the Company, declare the principal of
and accrued but unpaid interest on all the Notes to be due and
payable. Upon such a declaration, such principal and interest will be
due and payable immediately. If an Event of Default specified in
Section 7.01(h) or (i) with respect to the Company occurs, the principal of
and interest on all the Notes will become immediately due and payable without
any declaration or other act on the part of the Trustee or any
Holders. The Holders of a majority in principal amount of the
outstanding Notes by written notice to the Trustee may rescind any such
acceleration with respect to the Notes and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal of or interest
on Notes that has become due solely because of such acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
The Company shall give prompt
notice (which in any event shall be within five (5) Business Days of the event)
to the Trustee and the Holders of the occurrence of any Event of Default and the
rescission, cure or waiver of any Event of Default.
SECTION 7.03. Other
Remedies. Notwithstanding any other provision of this
Indenture, if an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of or interest
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a
proceeding in its own name and as trustee of an express trust 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 in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 7.04. Waiver of Past
Defaults. The Holders of a majority in principal amount of
the Notes by written notice to the Trustee may waive an existing Default and its
consequences except (a) a Default in the payment of principal of or interest on
a Note, (b) a Default arising from the failure to redeem or purchase any Note
when required pursuant to the terms of this Indenture or (c) a Default in
respect of a provision that under Section 11.02 cannot be amended without
the consent of each Holder affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 7.05. Control by
Majority. The Holders of a majority in principal amount of
the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or, subject to
Section 8.01, that the Trustee determines is unduly prejudicial to the
rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
(a) Except to
enforce the right to receive payment of principal of or interest on the Notes
when due, no Holder may pursue any remedy with respect to this Indenture or the
Notes unless:
(i) the
Holder has previously given to the Trustee written notice stating that an Event
of Default has occurred and is continuing;
(ii) the
Holders of at least 25% in principal amount of the outstanding Notes make a
written request to the Trustee to pursue the remedy;
(iii) such
Holder or Holders offer to the Trustee security or indemnity satisfactory to the
Trustee against any loss, liability or expense;
(iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(v) the
Holders of a majority in principal amount of the outstanding Notes have not
given the Trustee a direction inconsistent with the request during such 60-day
period.
(b)
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 7.07. Rights of Holders To Receive
Payment. Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of principal of and
interest on the Notes held by such Holder, on or after the respective due dates
expressed or provided for in the Notes, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 7.08. Collection Suit by
Trustee. If an Event of Default specified in
Section 7.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Notes for the whole amount then due and owing
(together with interest on overdue portion of the principal amount and (to the
extent lawful) on any unpaid interest at the rate provided for in the Notes) and
the amounts provided for in Section 8.07.
SECTION 7.09. Trustee May File Proofs of
Claim. The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee and the Holders allowed in any judicial proceedings relative to
the Company or any Subsidiary, their creditors or their property and, unless
prohibited by law or applicable regulations, may vote on behalf of the Holders
in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under
Section 8.07.
SECTION 7.10. Priorities. If
the Trustee collects any money or property pursuant to this Article 7, it
shall pay out the money or property in the following order:
FIRST: to
the Trustee for its fees (excluding expenses and indemnities) due under
Section 8.07;
SECOND: to
the Trustee for amounts (other than those set forth in clause FIRST) due under
Section 8.07;
THIRD: to
Holders for amounts due and unpaid on the Notes for principal and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal and interest, respectively;
and
FOURTH: to
the Company.
The Trustee may fix a record date
and payment date for any payment to Holders pursuant to this
Section 7.10. At least 15 days before such record date, the
Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and amount to be paid.
SECTION 7.11. Undertaking for
Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 7.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 7.06 or a suit by Holders
of more than 10% in principal amount of the Notes.
TRUSTEE
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i)
the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(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 (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated
therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of Section 8.01(b);
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(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 7.05.
(d) No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers.
(e) Every
provision of this Indenture that in any way relates to the Trustee is subject to
Sections 8.01(a), 8.01(b) and 8.01(c).
(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.
(g) Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(h) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall extend to the Registrar, Notes
Custodian, Paying Agent and an authenticating agent and be subject to the
provisions of this Section 8.01 and to the provisions of the
TIA.
Subject to the provisions of
Section 8.01:
(a) The
Trustee may conclusively rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers’ Certificate or Opinion of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s
conduct does not constitute willful misconduct or negligence.
(e) The
Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(f)
The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, debenture, note or
other paper or document or as to whether or not an Event of Default shall have
occurred unless requested in writing to do so by the Holders of not less than a
majority in principal amount of the Notes at the time outstanding, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind of reason of such inquiry or investigation.
(g) The
permissive rights of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty unless so specified herein.
(h) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Holders, pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred therein or
thereby.
(i)
In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(j) 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 Securities and this Indenture.
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder.
(l)
The Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture.
SECTION 8.03. Individual Rights of
Trustee. The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar or co-paying agent may do the
same with like rights. However, the Trustee must comply with
Sections 8.10 and 8.11.
SECTION 8.04. Trustee’s
Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity, priority or adequacy of this
Indenture, or the Notes, it shall not be accountable for the Company’s use of
the proceeds from the Notes, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with
the sale of the Notes or in the Notes other than the Trustee’s certificate of
authentication. The Trustee shall not be responsible for any conduct
or omission by the Company or the occurrence of any Event of
Default.
SECTION 8.05. Notice of
Defaults. If a Default occurs and is continuing and is
actually known to the Trustee, the Trustee shall mail to each Holder notice of
the Default (“Notice of Default”) within 30 days after it is actually known to a
Trust Officer or written notice of it is received by the
Trustee. Except in the case of a Default in payment of principal,
premium (if any) of or interest on any Note (including payments pursuant to the
redemption provisions of such Note), the Trustee may withhold notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding notice is in the interests of the Holders. If a Notice of
Default has been given to the Company by the Holders, a copy of such Notice of
Default shall be delivered by the Company to the Trustee. Except as
expressly provided herein, the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein, or in any of the documents executed in
connection with the Notes, or as to the existence of a Default or Event of
Default hereunder or thereunder, and may assume that no such Default or Event of
Default has occurred unless it has actual knowledge or received written notice
thereof.
SECTION 8.06. Reports by Trustee to
Holders. Within 60 days of each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail (if required by Section 313(a) of the TIA) to each Holder a
brief report dated as of such May 15 that complies with Section 313(a)
of the TIA. The Trustee shall also comply with Section 313(b) of
the TIA.
A
copy of each report at the time of its mailing to Holders shall be filed with
the Commission and each stock exchange (if any) on which the Notes are
listed. The Company agrees to notify promptly the Trustee whenever
the Notes become listed on any stock exchange and of any delisting
thereof.
SECTION 8.07. Compensation and
Indemnity. The Company shall pay to the Trustee from time
to time compensation for its services as may be agreed to between the Trustee
and the Company in writing. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee’s agents, counsel, accountants and experts and such
other professionals as the Trustee deems necessary, advisable or
appropriate. The Company and the Guarantors shall jointly and
severally indemnify the Trustee and any predecessor Trustee and their agents
against any and all loss, liability or expense (including reasonable and
documented attorneys’ fees) incurred by or in connection with the administration
of this trust and the performance of its duties hereunder, including the costs
and expenses of defending itself against any claim (whether asserted by the
Company, or any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
or in connection with enforcing the provisions of this Section. The
Trustee shall notify the Company of any claim for which it may seek indemnity
promptly upon obtaining actual knowledge thereof; provided, however, that any failure so to
notify the Company shall not relieve the Company of its indemnity obligations
hereunder. The Company shall defend the claim and the indemnified
party shall provide reasonable cooperation at the Company’s expense in the
defense. Such indemnified parties may have separate counsel and the
Company shall pay the fees and expenses of such counsel; provided, however, that the Company
shall not be required to pay such fees and expenses if it assumes such
indemnified parties’ defense and, in such indemnified parties’ reasonable
judgment, there is no conflict of interest between the Company and such parties
in connection with such defense; provided, further, however, that the selection
of the Company’s counsel shall be reasonably acceptable to the
Trustee. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by an indemnified party through
such party’s own willful misconduct or negligence.
To
secure the Company’s payment obligations in this Section 8.07, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee other than money or property held in trust to pay principal of
and interest on particular Notes.
The
Company’s obligations pursuant to this Section 8.07 shall survive the
satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Sections 7.01(h) and (i) with respect
to the Company or any of its Subsidiaries, the expenses are intended to
constitute expenses of administration under the Bankruptcy Law.
All
indemnifications and releases from liability granted hereunder to the Trustee
shall extend to its officers, directors, employees, agents, successors and
assigns.
(a) The
Trustee may resign at any time by so notifying the Company in writing in
accordance with the provisions of Section 13.02. Any resignation
of the Trustee shall be effective immediately upon receipt by the Company of
such notice (unless such notice shall specify a later time as the effective time
of such resignation, in which case such later time shall be the effective time),
and the resignation of the Trustee shall not prejudice any rights of the Trustee
to receive any compensation, any reimbursement of any expenses or any indemnity
or right to being defended and held harmless under this
Indenture. The Holders of a majority in principal amount of the Notes
may remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:
| (i) | the Trustee fails to comply with Section 8.10; |
| (ii) | the Trustee is adjudged bankrupt or insolvent; |
| (iii) | a receiver or other public officer takes charge of the Trustee or its property; or |
| (iv) | the Trustee otherwise becomes incapable of acting. |
(b) If the Trustee resigns, is
removed by the Company or by the Holders of a majority in principal amount of
the Notes and such Holders do not reasonably
promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for
any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.
(c) A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 8.07.
(d) If
a successor ▇▇▇▇▇▇▇ does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee (at the Company’s expense)
or
the
Holders of 10% in principal amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
(e) If
the Trustee fails to comply with Section 8.10, unless the Trustee’s duty to
resign is stayed as provided in TIA § 310(b), any Holder who has been a
bona
fide
Holder of a Note for at least six months may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f)
Notwithstanding the replacement of the Trustee pursuant to this
Section 8.08, the Company’s obligations under Section 8.07 shall
continue for the benefit of the retiring Trustee.
SECTION 8.09. Successor Trustee by
▇▇▇▇▇▇. If the Trustee consolidates with, merges or
converts into, or transfers or sells all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such
successor or successors by merger, conversion, sale or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall
have.
SECTION 8.10. Eligibility;
Disqualification. The Trustee shall at all times satisfy
the requirements of TIA § 310(a). The Trustee shall have, or in
the case of a corporation included in a bank holding company system, the related
bank holding company shall have, a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA § 310(b), subject
to its right to apply for a stay of its duty to resign under the penultimate
paragraph of TIA § 310(b); provided, however, that there shall be
excluded from the operation of TIA § 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA § 310(b)(1) are met.
SECTION 8.11. Preferential Collection of
Claims Against the Company. The Trustee shall comply with
TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated.
SECTION 8.12. Appointment of
Co-Trustee. It is the purpose of this Indenture that there
shall be no violation of any law of any jurisdiction (including the law of the
State of New York) denying or restricting the right of banking corporations
or associations to transact business as trustee in such
jurisdiction. It is recognized that, in case of litigation under this
Indenture, and in particular in the case of the enforcement thereof on default,
or in the case the Trustee deems that by reason of any present or future law of
any jurisdiction it may not exercise any of the powers, rights or remedies
herein granted to the Trustee or hold title to the properties, in trust, as
herein granted, or take any action which may be desirable or necessary in
connection therewith, it may be necessary that an additional individual or
institution act as a separate or Co-Trustee.
In
the event that the Trustee shall appoint an additional individual or institution
as a separate or Co-Trustee, each and every remedy, power, right, claim, demand,
cause of action, immunity, estate, title, interest and lien expressed or
intended by this Indenture to be exercised by or vested in or conveyed to the
Trustee with respect thereto shall be exercisable by and vest in such separate
or Co-Trustee, but only to the extent necessary to enable any separate or such
separate or Co-Trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by any separate or
such separate or Co-Trustee shall run to and be enforceable by either of
them.
Should any instrument in writing from
the Company be required by the separate or Co-Trustee so appointed by the
Trustee for more fully and certainly vesting in and confirming to it such
estates, property, rights, powers, trusts, duties, and obligations, any and all
such instruments in writing shall, on request, be executed, acknowledged and
delivered by the Company. In case the Co-Trustee or a successor to
either shall die or become incapable of acting, resign, or be removed, all the
estates, properties, rights, powers, trusts, duties and obligations of any
separate or such separate or Co-Trustee, so far as permitted by law, shall vest
in and be exercised by the Trustee until the appointment by the Trustee of a
successor to any separate or such separate or Co-Trustee or a new separate or
Co-Trustee. Any separate or Co-Trustee appointed by the Trustee
pursuant to this section may be removed by the Trustee , in which case all
powers, rights and remedies vested in the separate or Co-Trustee shall again
vest in the Trustee as if no such appointment as a separate or Co-Trustee had
been made.
DISCHARGE
OF INDENTURE; DEFEASANCE SECTION
(a) When
(i) all outstanding Notes (other than Notes replaced or paid pursuant to
Section 2.07) have been canceled or delivered to the Trustee for
cancellation or (ii) all outstanding Notes have become due and payable, whether
at maturity or as a result of the mailing of a notice of redemption pursuant to
Article 3 hereof, and the Company irrevocably deposits with the Trustee
funds in an amount sufficient, or U.S. Government Obligations, the principal of
and interest on which will be sufficient, or a combination thereof sufficient,
in the written opinion of a nationally recognized firm of independent public
accountants delivered to the Trustee (which delivery shall only be required if
U.S. Government Obligations have been so deposited), to pay the principal amount
of and interest on the outstanding Notes when due at maturity or upon redemption
of all outstanding Notes, including interest thereon to maturity or such
Redemption Date (other than Notes replaced or paid pursuant to
Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to
Section 9.01(c), cease to be of further effect. The Trustee
shall acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at
the cost and expense of the Company.
(b) Subject
to Sections 9.01(c) and 9.02, the Company at any time may terminate (i) all of
its obligations under the Notes and this Indenture (“legal defeasance option”)
or (ii) its obligations under Article 4 and Article 5, and the operation of
Sections 6.01(c), 7.01(f), 7.01(g), 7.01(h) (with respect to Significant
Subsidiaries) and 7.01(i) (with respect to Significant Subsidiaries) (“covenant
defeasance option”). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance
option.
In
the event that the Company exercises its legal defeasance option or its covenant
defeasance option, each Guarantor will be released from all of its obligations
with respect to its Note Guarantee.
If
the Company exercises its legal defeasance option, payment of the Notes may not
be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option,
payment of the Notes may not be accelerated because of an Event of Default
specified in Section 7.01(d), 7.01(f), 7.01(g), 7.01(h) (with respect only
to Significant Subsidiaries) or 7.01(i) (with respect only to Significant
Subsidiaries) or the failure of the Company to comply with Section
6.01(c).
Upon
satisfaction of the conditions set forth herein and upon request of the Company,
the Trustee shall acknowledge in writing the discharge of those obligations that
the Company terminates.
(c) Notwithstanding
paragraphs (a) and (b) above, the Company’s obligations in Sections 2.03, 2.04,
2.05, 2.06, 2.07, 8.07, 8.08 and in this Article 9 shall survive until the
Notes have been paid in full. Thereafter, the Company’s obligations
in Sections 8.07, 9.05 and 9.06 shall survive.
(a) The
Company may exercise its legal defeasance option or its covenant defeasance
option only if:
(i) the
Company irrevocably deposits in trust with the Trustee money in an amount
sufficient, or U.S. Government Obligations the principal of and interest on
which will be sufficient, or a combination thereof sufficient, to pay the
principal of and interest on the Notes when due at maturity or redemption, as
the case may be, including interest thereon to maturity or such Redemption
Date;
(ii) the
Company delivers to the Trustee a certificate from a nationally recognized firm
of independent accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay principal
and interest when due on all the Notes to maturity or redemption, as the case
may be;
(iii) 123
days pass after the deposit is made and during the 123-day period no Default
specified in Sections 7.01(h) and (i) with respect to the Company occurs
which is continuing at the end of the period;
(iv) the
Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of
1940;
(v) in
the case of the legal defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (1) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (2) 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 will not recognize income,
gain or loss for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had not
occurred;
(vi) in
the case of the covenant defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
(vii) the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and
discharge of the Notes as contemplated by this Article 9 have been complied
with.
(b) Before
or after a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Notes at a future date in accordance with
Article 3.
SECTION 9.03. Application of Trust
Money. The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to this
Article 9. It shall apply the deposited money and the money from
U.S. Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Notes.
The
Trustee shall be under no liability for interest on any money and U.S.
Government Obligations received by it in respect of the outstanding Notes except
as the Trustee may, at its sole option, otherwise agree with the
Company.
SECTION 9.04. Repayment to the
Company. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any money or U.S. Government Obligations
held by them as provided in this Article 9 which, in the written opinion of
a nationally recognized firm of independent public accountants delivered to the
Trustee (which delivery shall only be required if U.S. Government Obligations
have been so deposited), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent discharge or defeasance in
accordance with this Article 9.
If
money for the payment of principal of or interest on the Notes has been
deposited with the Trustee or Paying Agent and remains unclaimed for two years
after such amount is due and payable, the Trustee or Paying Agent shall pay the
money back to the Company at its written request unless an abandoned property
law designates another Person. After any such payment, the Trustee
and the Paying Agent shall have no further liability for such funds and Holders
entitled to the money must look only to the recipient and not to the Trustee for
payment.
SECTION 9.05. Indemnity for Government
Obligations. The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations.
SECTION 9.06. Reinstatement. If
the Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article 9 by reason of any legal
proceeding or by reason of any order or judgment of any court or Governmental
Authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article 9;
provided, however, that, if the
Company has made any payment of interest on principal of any Notes because of
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 or
U.S. Government Obligations held by the Trustee or Paying Agent.
GUARANTEES
(a) The
Restricted Subsidiaries of the Company that Guarantee borrowings under the
Credit Agreement, and certain future Subsidiaries of the Company, as primary
obligors and not merely as sureties, hereby jointly and severally, irrevocably
and unconditionally Guarantee on an unsecured senior subordinated basis the
performance and full and punctual payment when due, whether at Stated Maturity,
by acceleration or otherwise, all obligations of the Company under this
Indenture (including obligations to the Trustee) and the Notes, whether for
payment of principal of or interest on the Notes, expenses, indemnification or
otherwise (all such obligations guaranteed by such Guarantors being herein
called the “Guaranteed Obligations”). Each Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice or further assent from each such Guarantor, and that each such
Guarantor shall remain bound under this Article 10 notwithstanding any
extension or renewal of any Guaranteed Obligation.
(b) Each
Guarantor waives presentation to, demand of, payment from and protest to the
Company of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment. Each Guarantor waives notice of any default under the
Notes or the Guaranteed Obligations. The obligations of each
Guarantor hereunder shall not be affected by (i) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Notes or any
other agreement or otherwise; (ii) any extension or renewal of any thereof;
(iii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Notes or any other agreement; (iv) the release
of any security held by any Holder or the Trustee for the Guaranteed Obligations
or any of them; (v) the failure of any Holder or Trustee to exercise any right
or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of such Guarantor, except as provided in
Section 10.02(b).
(c) Each
Guarantor hereby waives any right to which it may be entitled to have its
obligations hereunder divided among the Guarantors, such that such Guarantor’s
obligations would be less than the full amount claimed. Each
Guarantor hereby waives any right to which it may be entitled to have the assets
of the Company first be used and depleted as payment of the Company’s or such
Guarantor’s obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder. Each Guarantor hereby waives any
right to which it may be entitled to require that the Company be sued prior to
an action being initiated against such Guarantor.
(d) Each
Guarantor further agrees that its Guarantee herein constitutes a guarantee of
payment, performance and compliance when due (and not a guarantee of collection)
and waives any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranteed
Obligations.
(e) Except
as expressly set forth in Sections 9.01 and 10.02, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Guarantor or would otherwise operate as a discharge of any Guarantor as a
matter of law or equity.
(f) Except
as expressly set forth in Sections 9.01 and 10.02, each Guarantor agrees that
its Guarantee shall remain in full force and effect until payment in full of all
the Guaranteed Obligations. Each Guarantor further agrees that its
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
on any Guaranteed Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
(g) In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of or interest on
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to
be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and
unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary obligations of the Company to
the Holders and the Trustee.
(h) Each
Guarantor agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations
guaranteed hereby may be accelerated as provided in Article 7 for the
purposes of any Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Guaranteed
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 7, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of this
Section 10.01.
(i) Each
Guarantor also agrees to pay, in addition to the amount stated above, any and
all costs and expenses (including reasonable counsel fees and expenses) incurred
by the Trustee or the Holders in enforcing any rights under this
Section 10.01.
(j) Upon
request of the Trustee, each Guarantor shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
(a) Any
term or provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be hereby guaranteed by
the applicable Guarantor without rendering the Guarantee, as it relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.
(b) Any
Guarantee of any Guarantor shall terminate and be of no further force or effect
and such Subsidiary Guarantor shall be deemed to be released from all
obligations under this Article 10: (i) in connection with any
sale of all of the Capital Stock of such Guarantor (including by way of merger
or consolidation) to a Person or group of Persons that is not (either or after
giving effect to such transaction) an Affiliate of the Company, if such sale is
made in compliance with Section 5.05 and, to the extent applicable, Section
6.01; (ii) if the Company designates such Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with the provisions of
this Indenture; or (iii) if such Guarantor is released from its Guarantee of
borrowings under the Credit Agreement.
In
the event that the conditions specified in this Section 10.02(b) are
satisfied and the Company delivers to the Trustee an Opinion of Counsel and an
Officers’ Certificate to that effect, the Trustee shall execute and deliver an
appropriate instrument evidencing such release.
SECTION 10.03. Successors and
Assigns. Each Guarantee is a continuing guarantee and
shall (a) remain in full force and effect until payment in full of all the
Guaranteed Obligations, (b) be binding upon each Guarantor and its successors
and (c) inure to the benefit of, and be enforceable by, the Trustee, the Holders
and their successors, transferees and assigns.
SECTION 10.04. Execution of Supplemental
Guarantee for Future Guarantors. Each Subsidiary which is
required to become a Guarantor pursuant to Section 4.13 shall promptly
execute and deliver to the Trustee a supplemental guarantee in the form of
Exhibit B hereto pursuant to which such Subsidiary shall become a Guarantor
under this Article 10 and shall guarantee the Guaranteed
Obligations. Concurrently with the execution and delivery of such
supplemental guarantee to this Indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers’ Certificate to the effect that
such supplemental guarantee has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors’ rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms and or to such other matters as the
Trustee may reasonably request.
SECTION 10.05. Non-Impairment. The
failure to endorse a Guarantee on any Note shall not affect or impair the
validity thereof.
SECTION 10.06. Endorsement of
Guarantees. To evidence its Guarantee set forth in this
Article 10, each Guarantor hereby agrees that a notation of such Guarantee
substantially in the form of Exhibit C to this Indenture shall be endorsed
by an officer of such Guarantor on each Global Note authenticated and delivered
by the Company; provided
that the Guarantee set forth in this Article 10 shall remain in full
force and effect notwithstanding any failure of a Guarantor to endorse on each
Note a notation of Guarantee.
AMENDMENTS
(a) The
Company, the Guarantors and the Trustee may amend this Indenture or the Notes
without notice to or consent of any Holder to:
(i) cure
any ambiguity, omission, defect or inconsistency;
(ii) provide
for the assumption by a successor entity of the obligations of the Company under
this Indenture;
(iii) provide
for uncertificated Notes in addition to or in place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Code;
(iv) add
additional Guarantees of the Notes;
(v) secure
the Notes;
(vi) add
to the covenants of the Company for the benefit of the Holders or to surrender
any right or power herein conferred upon the Company;
(vii) comply
with any requirement of the Commission in connection with qualifying, or
maintaining the qualification of, this Indenture under the TIA;
(viii) make
any change that does not adversely affect the rights of any Holder, subject to
the provisions of this Indenture;
(ix) provide
for the issuance of the Additional Notes;
(x) change
the name or title of the Notes, and any conforming changes related thereto;
or
(xi) conform
the text of this Indenture, the Notes or the Note Guarantees to any provision of
the Section titled “Description of Notes” within the prospectus supplement dated
March 10, 2010 to the extent that such provision in this Indenture, the Notes or
the Note Guarantees was intended to be a verbatim recitation of a provision of
the Section titled “Description of Notes” within the prospectus supplement dated
March 10, 2010.
(b) After
an amendment under this Section 11.01 becomes effective, the Company shall
mail to Holders a notice briefly describing such amendment. However,
the failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this
Section 11.01.
(a) The
Company, the Guarantors and the Trustee may amend this Indenture or the Notes
without notice to any Holder but with the written consent of the Required
Holders (including consents obtained in connection with a tender offer or
exchange for the Notes). However, without the consent of each Holder
affected, an amendment may not:
(i) reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement, waiver or modification;
(ii) reduce
the rate of or extend the time for payment of interest on any Note;
(iii) reduce
the principal amount of or change the Stated Maturity of any Note;
(iv) reduce
the premium payable upon the redemption of any Note or change the time at which
any Note may be redeemed in accordance with Section 6 of the Notes;
(v) make
any Note payable in money other than that stated in the Note;
(vi) impair
the right of any Holder to receive payment of principal of and interest on such
▇▇▇▇▇▇’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s
Notes;
(vii) make
any change in Section 7.04 or 7.07 or the second sentence of this
Section 11.02(a);
(viii) make
any change in the ranking or priority of any Note or Note Guarantee that would
adversely affect the Holders; or
(ix) release,
other than in accordance with this Indenture, any Note Guarantee or collateral
securing the Notes.
It shall not be necessary for the
consent of the Holders under this Section 11.02 to approve the particular
form of any proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
(b) After
an amendment under this Section 11.02 becomes effective, the Company shall
mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this
Section 11.02.
SECTION 11.03. Compliance with Trust
Indenture Act. Every amendment to this Indenture or the
Notes shall comply with the TIA as then in effect.
(a) A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder’s Note, even if notation of the consent
or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder’s Note or
portion of the Note if the Trustee receives the notice of revocation before the
date on which the Trustee receives an Officers’ Certificate from the Company
certifying that the requisite number of consents have been
received. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the
(i) receipt by the Company or the Trustee of the requisite number of
consents, (ii) satisfaction of conditions to effectiveness as set forth in this
Indenture and any indenture supplemental hereto containing such amendment or
waiver and (iii) execution of such amendment or waiver (or supplemental
indenture) by the Company and the Trustee.
(b) The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for
more than 120 days after such record date.
SECTION 11.05. Notation on or Exchange of
Notes. If an amendment changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note
regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Note shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms. Failure to
make the appropriate notation or to issue a new Note shall not affect the
validity of such amendment.
SECTION 11.06. Trustee To Sign
Amendments. The Trustee shall sign any amendment
authorized pursuant to this Article 11 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it and to receive, and (subject to
Section 8.01) shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture and that such amendment is the legal, valid and
binding obligation of the
Company and the Guarantors enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 11.03).
SUBORDINATION
The
Indebtedness evidenced by the Notes and the Note Guarantees is a senior
subordinated unsecured Obligation of the Company and the Guarantors, as the case
may be. Anything herein to the contrary notwithstanding, the Company,
for itself and its successors, the Trustee, each Holder and each Guarantor
agrees that (i) the payment of all Obligations owing on, or relating to, the
Notes to the Holders is subordinated, to the extent and in the manner provided
in this Article 12, to the prior payment in full in cash (or any other
consideration acceptable to the holders of Senior Indebtedness) of all
Obligations on Senior Indebtedness (including all Obligations with respect to
the Credit Agreement, the 7% Notes, the 7¼% Notes and the 8¼% Notes), whether
outstanding on the Closing Date or thereafter Incurred, (ii) the payment of all
Guaranteed Obligations of each Guarantor is subordinated, to the extent and in
the manner provided in this Article 12, to the prior payment in full in cash (or
any other consideration acceptable to the holders of any Senior Indebtedness of
any Guarantor) of all Obligations on Senior Indebtedness of such Guarantor,
whether outstanding on the Closing Date or thereafter Incurred and (iii) neither
the Trustee nor the Holders of Notes may receive or accept payments under a Note
Guarantee at a time when they are not entitled to receive payment under the
Notes. The Notes and the Note Guarantees shall in all respects rank
pari passu with all other Senior
Subordinated Indebtedness of the Company and the Guarantors, and shall rank
senior in right of payment to all other Subordinated Indebtedness of the Company
and the Guarantors.
The
terms of the subordination provisions described in this Article 12 with respect
to the Company’s Obligations under the Notes apply equally to each Guarantor and
the Obligations of such Guarantors under their respective Note
Guarantees.
This
Article 12 shall constitute a continuing benefit to all Persons who become
holders of, or continue to hold, Senior Indebtedness, and such provisions are
made for the benefit of the holders of Senior Indebtedness, and such holders are
made obligees hereunder and any one or more of them may enforce such
provisions.
(a) Neither
the Company nor any other Person on its behalf shall make any payment of any
kind or character with respect to any Obligations owing on, or with respect to,
the Notes or make any payment pursuant to a Change of Control Offer or make any
further deposit
pursuant to Section 9.02 and may not repurchase, redeem or otherwise retire for
value or make any payment of any kind with respect to any Notes (collectively,
“pay the Notes”) if:
(i)
any Payment Default with
respect to any Senior Indebtedness (including upon any acceleration of the
maturity thereof) occurs and is continuing; or
(ii) any
event of default (other than a Payment Default) occurs and is continuing with
respect to any Designated Senior Indebtedness (as such event of default is
defined in the instrument creating or evidencing such Designated Senior
Indebtedness) that permits holders of such Designated Senior Indebtedness to
accelerate the maturity thereof (a “Non-payment
Default”), and the Trustee receives notice of such default (a “Payment Blockage
Notice”) from the Representative of any Designated Senior Indebtedness or
the Company.
(b) No
new Payment Blockage Notice may be delivered unless and until 360 days have
elapsed since the effectiveness of the immediately prior Payment Blockage
Notice.
(c) For
all purposes of this Section 12.02, no known default (other than a Payment
Default) that existed or was continuing on the date of the commencement of a
Payment Blockage Notice (whether or not such default is on the same issue of
Designated Senior Indebtedness) shall be made the basis for the commencement of
any other Payment Blockage Notice, unless such default has been cured or waived
or has ceased to exist and thereafter subsequently reoccurred (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period ending after the date of effectiveness of such Payment
Blockage Notice 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).
(d) Payments
on the Notes shall be resumed:
(i)
in the case of a Payment Default, upon the date on which such default is cured
or waived or will have ceased to exist; and
(ii) in
the case of a Non-payment Default, upon the earlier of (x) the date on which
such default is cured or waived or will have ceased to exist (so long as no
other default with respect to such Designated Senior Indebtedness exists) and
(y) 179 days after the date on which the applicable Payment Blockage Notice is
received (unless, in the case of (x) or (y), the maturity of any Designated
Senior Indebtedness has been accelerated and such acceleration has not been
rescinded).
(e) In
the event that, notwithstanding the foregoing, any payment shall be received by
the Trustee or any Holder when such payment is prohibited by the foregoing
provisions of this Section 12.02, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (pro rata
to such holders on the basis of the respective amount of Senior Indebtedness
held by such holders), or their respective Representatives, as their respective
interests may appear. The Trustee shall be entitled to conclusively
rely on information regarding amounts then due and owing on the Senior
Indebtedness, if any, received from the holders of Senior Indebtedness (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 Indebtedness.
Nothing contained in this Article
12 shall limit the right of the Trustee or the Holders to take any action to
accelerate the maturity of the Notes and all other Obligations owing under the
Notes pursuant to Article 7 or to pursue any rights or remedies hereunder
(subject to the rights, if any, under this Article 12, of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy); provided that all Senior
Indebtedness thereafter due or declared to be due shall first be paid in full in
cash before the Holders are entitled to receive any payment of any kind or
character with respect to Obligations owing on, or with respect to, the
Notes.
In the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relating to the Company or to any of its assets, or (b) any payment or
distribution of the assets of the Company to creditors upon a total or partial
liquidation, dissolution or other winding up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other marshaling of assets and
liabilities of the Company, then and in any such event the holders of Senior
Indebtedness shall be entitled to receive payment in full in cash or other
payment satisfactory to the holders of Senior Indebtedness (in their sole
discretion) of all amounts due or to become due on or in respect of all Senior
Indebtedness before the Holders of the Notes are entitled to receive any payment
on account of principal of or interest on the Notes or on account of the
purchase, redemption or other retirement of Notes (including any payment
pursuant to the terms of a Change of Control Offer), and to that end the holders
of Senior Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, securities or other property which may be payable or deliverable in
respect of the Notes in any such case, proceeding, receivership, dissolution,
liquidation, reorganization or other winding up or event.
In the event that,
notwithstanding the foregoing provisions of this Section 12.03, the Holder of
any Note shall have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, securities or other property,
before all Senior Indebtedness is paid in full, then such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article 12
only, the words "cash, securities or other property" shall not be deemed to
include shares of stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment which shares of stock are subordinated in right
of payment to all then outstanding Senior
Indebtedness at least to the same extent as the Notes are so subordinated as
provided in this Article 12. The consolidation of the Company with, or the
merger of the Company into, another Person or the liquidation or dissolution of
the Company following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Section 6.01 shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section 12.03 if the Person formed by such consolidation or into which the
Company is merged or which acquires by conveyance or transfer such properties
and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Section 6.01.
In the event that any Notes are
declared due and payable before their Stated Maturity pursuant to Article 7,
then and in such event the holders of the Senior Indebtedness outstanding at the
time such Notes so become due and payable shall be entitled to receive payment
in full of all amounts due or to become due as a result of such acceleration of
the Notes on or in respect of all Senior Indebtedness before the Holders of the
Notes are entitled to receive any payment by the Company on account of the
principal of or interest on the Notes or on account of the purchase, redemption
or other retirement of Notes (including any payment pursuant to a Change of
Control Offer). The provisions of this paragraph shall not apply to
any payment with respect to which the first three paragraphs of this Section
12.03 would be applicable. If payment of the Notes is accelerated
because of an Event of Default, the Company or the Trustee shall promptly notify
the holders of Designated Senior Indebtedness or the Representatives of such
holders of the acceleration.
The terms of this Article 12 will
not apply to payments from money or the proceeds of U.S. Government Obligations
held in trust by the Trustee for the payment of principal of and interest on the
Notes pursuant to the provisions of Article 9.
SECTION
12.04. Payments May Be Paid Prior to
Dissolution.
Nothing contained in this Article
12 or elsewhere in this Indenture shall prevent (i) the Company from making
payments at any time for the purpose of making payments of principal of and
interest on the Obligations owing under the Notes or from depositing with the
Trustee any monies for such payments (provided that, notwithstanding the
foregoing, the Holders receiving any payments made in contravention of Sections
12.02 and/or 12.03 (and such payments) shall otherwise be subject to the
provisions of Sections 12.02 and 12.03), or (ii) in the absence of actual
knowledge by the Trust Officer that a given payment would be prohibited by
Section 12.02 or 12.03, the application by the Trustee of any monies deposited
with it for the purpose of making such payments of principal of, and interest
on, the Obligations owing under the Notes to the Holders entitled thereto unless
at least one Business Day prior to the date upon which such payment would
otherwise become due and payable a Trust Officer of the Trustee shall have
actually received the written notice provided for in Section 12.13, in the first
sentence of Section 12.02(b) or in the last sentence of this Section 12.04
(provided that, notwithstanding the foregoing, the Holders receiving any
payments made in contravention of Sections 12.02 and/or 12.03 (and such
payments) shall otherwise be subject to the provisions of Sections 12.02 and
12.03). The Company shall give prompt written notice to the Trustee
of any dissolution, winding-up, liquidation
or reorganization of the Company, although any delay or failure to give any such
notice shall have no effect on the subordination provisions contained
herein.
Subject to the payment in full in
cash of all Senior Indebtedness, the Holders shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to Senior Indebtedness
until the Obligations owing under 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 Indebtedness by or on behalf of the Company, or by or on behalf of
the Holders by virtue of this Article 12, which otherwise would have been made
to the Holders shall, as between the Company and the Holders, be deemed to be a
payment by the Company to or on account of Senior Indebtedness, it being
understood that the provisions of this Article 12 are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article
12 or elsewhere in this Indenture is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders, the Obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and any interest on the Obligations owing
under 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 Senior
Indebtedness, nor shall anything herein or therein prevent any Holder or the
Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article 12, of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
Whenever a distribution is to be
made or a notice given to holders of Senior Indebtedness, 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 12, the Trustee and the
Holders shall be entitled to conclusively rely upon any order or decree made by
any court of competent jurisdiction in which any insolvency, bankruptcy,
receivership, dissolution, winding-up, liquidation, reorganization or similar
case or proceeding is pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered to the Trustee or
the Holders, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other debt 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 12. Nothing in this Article 12 shall apply to
the
claims of, or payments to, the Trustee in its capacity as such under or pursuant
to Section 8.07. The Trustee shall be entitled to conclusively
rely on the delivery to it of a written notice by a Person representing himself
or itself to be a holder of any Senior Indebtedness (or a trustee on behalf of,
or other representative of, such holder) or their Representative to establish
that such notice has been given by a holder of such Senior Indebtedness 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 Indebtedness to participate in any payment
or distribution pursuant to this Article 12, the Trustee may request such Person
or their Representative to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness 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 12, 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.
SECTION
12.08. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future
holders of any Senior Indebtedness to enforce subordination as provided herein
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, in good faith,
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the
generality of the foregoing paragraph, the holders of Senior Indebtedness may,
at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Trustee or the
Holders and without impairing or releasing the subordination provided in this
Article 12 or the obligations hereunder of the Holders to the holders of the
Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness, or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the payment or
collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Each Holder authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior
Indebtedness and the Holders, the subordination provided in this Article 12, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation
or reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of credits or otherwise) tending towards liquidation of the business
and assets of the Company, the filing of a claim for the unpaid balance of its
Obligations owing under the Notes and accrued interest in the form required in
those proceedings.
If the Trustee does not file a
proper claim or proof of debt in the form required in such proceeding prior to
30 days before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their Representative shall have the right
to file and are or is hereby authorized to file an appropriate claim for and on
behalf of the Holders. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness 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 Obligations owing under the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
The failure to make a payment on
account of principal of or interest on the Obligations owing under the Notes by
reason of any provision of this Article 12 will not be construed as preventing
the occurrence of an Event of Default.
No amendment of, or supplement or
waiver to, this Indenture shall adversely affect the rights of any holder of
Senior Indebtedness under this Article 12 without the consent of such holder of
Senior Indebtedness. Notwithstanding anything to the contrary
contained in this Indenture (but without limiting the provisions of the
immediately preceding sentence), no amendment or modification to any provision
of this Article 12 or the related definitions used herein (other than to cure
any ambiguity, defect, mistake or inconsistency herein, so long as such
amendment or modification does not adversely affect the rights of the holders of
any Senior Indebtedness then outstanding) shall be permitted without 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) or, if
required by Section 11.02, by each Holder affected.
If payment of the Notes is
accelerated because of an Event of Default, the Company shall promptly notify
holders of Senior Indebtedness of the acceleration.
The Company shall give prompt
written notice to the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee or any Holder in respect
of the Notes pursuant to the provisions of this Article 12 although any delay or
failure to give any such notice shall have no effect on the subordination
provisions contained herein. Notwithstanding
the provisions of this Article 12 or any other provision of this Indenture,
neither the Trustee nor any Paying Agent shall be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee or such Paying Agent, and (in the absence of actual
knowledge that the respective payment will violate the applicable provisions of
this Article 12) the Trustee and such Paying Agent may continue to make payments
on the Notes, unless a Trust Officer of the Trustee or such Paying Agent shall
have actually received, 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 12 (although the receipt of
such payment shall otherwise be subject to the applicable provisions of this
Article 12). Only the Company or a holder of Senior Indebtedness or a
Representative thereof may give the notice. Nothing in this Article
12 shall impair the claims of, or payments to, the Trustee in its capacity as
such under or pursuant to Section 8.07. Nothing in this Section
12.13 is intended to or shall relieve any Holder of Notes from the obligations
imposed under Sections 12.02 and 12.03 with respect to other distributions
received in violation of the provisions hereof.
The Trustee in its individual or any
other capacity may hold Senior Indebtedness with the same rights it would have
if it were not Trustee. Any Agent may do the same with like
rights.
The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be
liable to any such holders if the Trustee shall in good faith mistakenly pay
over or distribute to Holders of Notes or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise. With respect to
the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set forth
in this Article 12 and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act
Controls. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an “incorporated provision”) included in, this Indenture by
operation of TIA §§ 310 to 318, inclusive, such imposed duties or
incorporated provision shall control.
SECTION 13.02. Notices. Any
notice or communication shall be in writing and delivered in person, mailed by
first-class mail addressed as follows or transmitted via telecopy (or other
facsimile device) with receipt confirmed as set forth below:
if
to the Company:
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Cincinnati,
Ohio 45202
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
(facsimile
no.: (▇▇▇) ▇▇▇-▇▇▇▇)
with
copies to:
▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
New York,
NY 10019
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇, Esq.
(facsimile
no.: (▇▇▇) ▇▇▇-▇▇▇▇)
if
to the Trustee:
The
Bank of New York Mellon
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ – 8W
New York,
New York 10286
Attention: Corporate
Trust Administration
(facsimile
no.: (▇▇▇) ▇▇▇-▇▇▇▇/5707)
The Company or the Trustee by
notice to the other may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication
mailed to a Holder shall be mailed first class mail, to the Holder at the
Holder’s address as it appears on the registration books of the Registrar and
shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or
communication to a 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, it is duly given, whether or not the addressee
receives it.
SECTION 13.03. Communication by Holders
with Other Holders. Holders may communicate pursuant to
TIA § 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 § 312(c).
SECTION 13.04. Certificate and Opinion as
to Conditions Precedent. Upon any request or application
by the Company to the Trustee to take or refrain from taking any action under
this Indenture, the Company shall furnish to the Trustee:
(a) an
Officers’ Certificate in form reasonably satisfactory to the Trustee stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with;
and
(b) an
Opinion of Counsel in form reasonably satisfactory to the Trustee stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
SECTION 13.05. Statements Required in
Certificate or Opinion. Each certificate or opinion with
respect to compliance with a covenant or condition provided for in this
Indenture (other than pursuant to Section 4.06) shall include:
(a) a
statement that the individual 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 individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(d) a
statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.
SECTION 13.06. When Notes
Disregarded. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent hereunder, Notes owned by the Company, any Subsidiary or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any Subsidiary shall in each case be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Trust Officer actually knows
are so owned shall be so disregarded. Subject to the foregoing, only
Notes outstanding at the time shall be considered in any such
determination.
SECTION 13.07. Rules by Trustee, Paying
Agent and Registrar. The Trustee may make reasonable rules
for action by or a meeting of Holders. The Registrar and the Paying
Agent may make reasonable rules for their functions.
SECTION 13.08. Legal
Holidays. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a Regular Record
Date is a Legal Holiday, the record date shall not be affected.
SECTION
13.09. GOVERNING
LAW. THIS INDENTURE
AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.10. No Recourse Against
Others. A director, officer, employee, stockholder or
member, as such, of the Company or any of the Subsidiaries shall not have any
liability for any obligations of the Company or any of the Subsidiaries under
the Notes or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note,
each Holder shall waive and release all such liability. The waiver
and release shall be part of the consideration for the issue of the
Notes.
SECTION 13.11. Successors. All
agreements of the Company and each Subsidiary in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 13.12. Multiple Originals;
Counterparts. The parties may sign any number of
counterparts of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION 13.13. Table of Contents;
Headings. The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions
hereof.
SECTION 13.14. Incorporation. All
Exhibits and Schedules attached hereto are incorporated as part of this
Indenture as if fully set forth herein.
SECTION 13.15. Intent To Limit Interest to
Maximum. In no event shall the interest rate payable on
the Notes under this Indenture, plus any other amounts paid by the Company to
the Holders in connection therewith, exceed the highest rate permissible under
law that a court of competent jurisdiction shall, in the final determination,
deem applicable. The Company and the Trustee, in executing and
delivering this Indenture, intend legally to agree upon the rate or rates of
interest and the manner of payment stated within it; provided, however, that, anything
contained herein to the contrary notwithstanding, if said rate or rates of
interest or manner of payment exceeds the maximum allowable under applicable
law, then, ipso facto as of the date of this Indenture, the Company is and shall
be liable only for the payment of such maximum as allowed by law, and payment
received from the Company in excess of such legal maximum, whenever received,
shall be applied to reduce the principal balance of any Notes then outstanding
to the extent of such excess, or, if such excess exceeds the then outstanding
principal, such excess shall be first set off against any other amounts then due
and owing by the Company and refunded to the Company.
SECTION 13.16. Waiver
of Jury Trial. EACH OF THE COMPANY, EACH GUARANTOR AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED
HEREBY.
SECTION 13.17. Force
Majeure. In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
[Signature
Pages Follow]
IN WITNESS
WHEREOF, the parties have caused this Indenture to be duly executed as of
the date first written above.
COMPANY:
| CINCINNATI BELL INC. | |||
|
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
GUARANTORS:
|
CINCINNATI
BELL ENTERTAINMENT INC.
|
|
|
CINCINNATI
BELL COMPLETE PROTECTION INC.
|
|
|
CINCINNATI
BELL TELECOMMUNICATION SERVICES LLC
|
|
|
BRCOM
INC.
|
|
|
CINCINNATI
BELL TECHNOLOGY SOLUTIONS INC.
|
|
|
CINCINNATI
BELL WIRELESS COMPANY
|
|
|
CINCINNATI
BELL WIRELESS, LLC
|
|
|
CINCINNATI
BELL SHARED SERVICES LLC
|
|
|
GRAMTEL
INC.
|
|
|
CBTS
SOFTWARE LLC
|
|
|
CINCINNATI
BELL ANY DISTANCE INC.
|
|
|
CINCINNATI
BELL ANY DISTANCE OF VIRGINIA LLC
|
|
|
IXC
INTERNET SERVICES, INC.
|
|
|
EVOLVE
BUSINESS SOLUTIONS LLC
|
|
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
TRUSTEE:
| THE BANK OF NEW YORK MELLON | |||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Vice President | |||
PROVISIONS
RELATING TO NOTES
1. Definitions
1.1 Definitions.
For the purposes of this Appendix the
following terms shall have the meanings indicated below:
“Additional Notes” means, subject to
compliance with Sections 2.02 and 5.04 hereof, an unlimited principal
amount of 8¾% Senior Subordinated Notes due 2018 issued from time to time after
the Closing Date under the terms of the Indenture (other than pursuant to
Section 2.06, 2.07, 2.09 or 3.06 of the Indenture).
“Definitive Note” means a certificated
Note.
“Depository” means The Depository Trust
Company, its nominees and their respective successors.
“Global Note Legend” means the legend
set forth in Section 2.3(c) hereto, which is required to be placed on all Global
Notes issued under the Indenture.
“Global Notes” means, individually and
collectively, each of the Notes issued or issuable in the global form of Exhibit
A hereto issued in accordance with Article 2 of the Indenture.
“Notes” means (1) $625,000,000
aggregate principal amount of 8¾% Senior Subordinated Notes due 2018 issued on
the Closing Date and (2) Additional Notes, if any.
“Notes Custodian” means the custodian
with respect to a Global Note (as appointed by the Depository) or any successor
Person thereto and shall initially be the Trustee.
“Securities Act” means the Securities
Act of 1933.
“Underwriters” means (1) with respect
to the Notes issued on the Closing Date, Banc of America Securities LLC and the
underwriters listed in Schedule II to the Underwriting Agreement and (2) with
respect to each issuance of Additional Notes, the Persons purchasing such
Additional Notes under the related Underwriting Agreement.
“Underwriting Agreement” means (1) with
respect to the Notes issued on the Closing Date, the Underwriting Agreement
dated March 10, 2010, among the Company, the Guarantors and the Underwriters,
and (2) with respect to each issuance of Additional Notes, the purchase
agreement or underwriting agreement among the Company, the Guarantors and the
Persons purchasing such Additional Notes.
1.2 Other
Definitions.
|
Term
|
Defined in Section:
|
|
|
“Agent
Members”
|
2.1(b)
|
2. The
Notes.
2.1
(a) Form and
Dating. The Notes issued on the Closing Date will be offered
and sold by the Company pursuant to an Underwriting Agreement. Notes
issued in global form shall be substantially in the form of Exhibit A attached
hereto (including the Global Note Legend and the “Schedule of Increases or
Decreases in the Global Note” attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto
(but without the Global Note Legend and without the “Schedule of Increases or
Decreases in the Global Note” attached thereto). Each Global Note
shall represent such aggregate principal amount 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. Additional Notes offered after the
Closing Date may be sold in accordance with applicable law.
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, the
Depository 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 of the
Indenture.
(b) Book-Entry
Provisions. This Section 2.1(b) shall apply only to a Global
Note deposited with or on behalf of the Depository.
The Company shall execute and the
Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver
initially one or more Global Notes that (a) shall be registered in the name of
the Depository for such Global Note or Global Notes or the nominee of such
Depository and (b) shall be delivered by the Trustee to such Depository or
pursuant to such Depository’s instructions or held by the Trustee as custodian
for the Depository.
Members of, or participants in, the
Depository (“Agent Members”) shall have no rights under the Indenture with
respect to any Global Note held on their behalf by the Depository or by the
Trustee as the custodian of the Depository or under such Global Note, and the
Company, the Trustee and any agent of the Company or the Trustee shall be
entitled to treat the Depository as the absolute owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices of such Depository
governing the exercise of the rights of a holder of a beneficial interest in any
Global Note.
(c) Certificated
Notes. Except as provided in this Section 2.1 or Section 2.3
or 2.4, owners of beneficial interests in Global Notes shall not be entitled to
receive physical delivery of certificated Notes.
2.2 Authentication. The
Trustee shall authenticate and deliver: (1) on the Closing Date,
an aggregate principal amount of $625,000,000 of 8¾% Senior Subordinated Notes
due 2018, and (2) any Additional Notes for an original issue in an
aggregate principal amount specified in the written order of the Company
pursuant to Section 2.02 of the Indenture, in each case upon a written order of
the Company signed by one Officer or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall
specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and, in the case of any issuance
of Additional Notes pursuant to Section 2.14 of the Indenture, shall certify
that such issuance is in compliance with Section 5.04 of the
Indenture.
2.3 Transfer and
Exchange.
(a) Transfer and Exchange of
Definitive Notes. When Definitive Notes are presented to the
Registrar with a request:
(x) to
register the transfer of such Definitive Notes; or
(y) to
exchange such Definitive Notes for an equal principal amount of Definitive Notes
of other authorized denominations,
the
Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided, however, that the Definitive
Notes surrendered for transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or its attorney
duly authorized in writing.
(b) Transfer and Exchange of
Global Notes. (i) The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depository, in accordance with the Indenture (including applicable restrictions
on transfer set forth herein, if any) and the procedures of the Depository
therefor. A transferor of a beneficial interest in a Global Note
shall deliver to the Registrar a written order given in accordance with the
Depository’s procedures containing information regarding the participant account
of the Depository to be credited with a beneficial interest in the Global
Note. The Registrar shall, in accordance with such instructions
instruct the Depository to credit to the account of the Person specified in such
instructions a beneficial interest in the Global Note and to debit the account
of the Person making the transfer the beneficial interest in the Global Note
being transferred.
(ii)
If the proposed transfer is a
transfer of a beneficial interest in one Global Note to a beneficial interest in
another Global Note, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the Global Note to which such
interest is being transferred in an amount equal to the principal amount of the
interest to be so transferred, and the Registrar shall reflect on its books and
records the date and a corresponding decrease in the principal amount of the
Global Note from which such interest is being transferred.
(iii)Notwithstanding any other provisions
of this Appendix (other than the provisions set forth in Section 2.4), a Global
Note may not be transferred as a whole except by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv)In the event that a Global Note is
exchanged for Definitive Notes pursuant to Section 2.4 of this Appendix, such
Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3 and such other
procedures as may from time to time be adopted by the Company.
(c) Legend.
(i)
Global Note
Legend. Each Global Note shall bear a legend in substantially
the following form:
“UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
“TRANSFERS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.”
(ii)
OID
Legend. Each Note issued hereunder that has more than a de
minimis amount of original issue discount for U.S. federal income tax purposes
shall bear a legend in substantially the following form:
“THIS
NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ.
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN
THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY FOR SUCH NOTE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO
THE COMPANY AT THE FOLLOWING ADDRESS: CINCINNATI BELL
INC., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
ATTENTION: INVESTOR RELATIONS”
(d)
Cancellation or Adjustment
of Global Note. At such time as all beneficial interests in a
Global Note have either been exchanged for certificated Notes, redeemed,
purchased or canceled, such Global Note shall be returned to the Depository for
cancellation or retained and canceled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for certificated Notes, redeemed, purchased or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Notes Custodian for such Global Note) with respect to such Global Note, by
the Trustee or the Notes Custodian, to reflect such reduction.
(e) Obligations with Respect to
Transfers and Exchanges of Notes.
(i)
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate certificated Notes and Global Notes at the
Registrar’s request.
(ii)
No service charge shall be made
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge payable upon exchange
or transfer pursuant to Sections 3.06, 4.09, 4.10 and 11.05 of the
Indenture).
(iii)The Registrar shall not be required
to register the transfer of or exchange of (a) any Definitive Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part or (b) any Note for a period of 15 days before a mailing
of a notice with respect to Notes to be redeemed or during the period between a
record date and the corresponding interest payment date.
(iv)Prior to the due presentation for
registration of transfer of any Note, the Company, the Trustee, the Paying Agent
or the Registrar may deem and treat the person in whose name a Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of, premium, if any, and interest on such Note and for all
other purposes whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent or the Registrar shall be affected by
notice to the contrary.
(v)All Notes issued upon any transfer or
exchange pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(f) No Obligation of the
Trustee. (i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Note, a member of, or a participant in the
Depository or other Person with respect to the accuracy of the records of the
Depository or its nominee or of any participant or member thereof, with respect
to any ownership interest in the Notes or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption) or the
payment of
any amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders
under the Notes shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee in the case of
a Global Note). The rights of beneficial owners in any Global Note
shall be exercised only through the Depository subject to the applicable rules
and procedures of the Depository. The Trustee may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its members, participants and any beneficial owners.
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Depository participants, members or
beneficial owners in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by, the terms of this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
2.4 Certificated
Notes.
(a) A
Global Note deposited with the Depository or with the Trustee as Notes Custodian
for the Depository pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of certificated Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.3 and (i)
the Depository notifies the Company that it is unwilling or unable to continue
as Depository for such Global Note or if at any time such Depository ceases to
be a “clearing agency” registered under the Exchange Act and in either event a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and DTC
notifies the Trustee of its decision to exchange the Global Notes.
(b) Any
Global Note that is transferable to the beneficial owners thereof pursuant to
this Section shall be surrendered by the Depository or the Notes Custodian to
the Trustee located at its Corporate Trust Office to be so transferred, in whole
or from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Note, an equal
aggregate principal amount of certificated Notes of authorized
denominations. Any portion of a Global Note transferred pursuant to
this Section shall be executed, authenticated and delivered only in
denominations of $2,000 principal amount and any integral multiples of $1,000 in
excess thereof and registered in such names as the Depository shall
direct.
(c) Subject
to the provisions of Section 2.4(b), the Holder of a Global Note shall be
entitled to grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under the Indenture or the
Notes.
(d) In
the event of the occurrence of any of the events specified in Section 2.4(a),
the Company shall promptly make available to the Trustee a reasonable supply of
Definitive Notes in definitive, fully registered form without interest
coupons.
[FORM
OF FACE OF NOTE]
[Global
Notes Legend]
[Insert the Global Note Legends, if
applicable, pursuant to the provisions of the Indenture]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.]
[Insert the OID Legend, if
applicable, pursuant to the provisions of the Indenture]
[THIS
NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ.
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN
THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY FOR SUCH NOTE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO
THE COMPANY AT THE FOLLOWING ADDRESS: CINCINNATI BELL INC., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ATTENTION: INVESTOR
RELATIONS]
No.
[___________] $
CUSIP No.
171871 AM8
8¾%
Senior Subordinated Note due 2018
CINCINNATI BELL INC., an Ohio
corporation, promises to pay to __________, or registered assigns, the principal
amount of
[ ]
Dollars on March 15, 2018 (the “Stated Maturity Date”).
Interest Payment
Dates: March 15 and September 15, commencing September 15,
2010.
Regular Record Dates: March
1 and September 1.
Additional provisions of this Note are
set forth on the other side of this Note.
IN
WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
| CINCINNATI BELL INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
The Bank
of New York Mellon, Trustee, certifies that this is one of the Notes
referred to in the Indenture.
|
|
By:
|
||
| Authorized Signatory | |||
Dated:
[FORM OF
REVERSE SIDE OF NOTE]
8¾%
Senior Subordinated Note due 2018
1. Interest
CINCINNATI
BELL INC., an Ohio corporation (the “Company”), promises to pay interest on the
principal amount of this Note at 8.75% per annum from the most recent date to
which interest has been paid or, if no interest has been paid, from March 15,
2010. The Company will pay interest semi-annually in arrears on March
15 and September 15 of each year, commencing September 15, 2010, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
“Interest Payment Date”). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance; provided that if there is no
existing Default or Event of Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original issuance of
Notes, in which case interest shall accrue from the date of
authentication. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of
Payment
The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are registered holders of
Notes at the close of business on the March 1 or September 1 next preceding the
Interest Payment Date (the “Regular Record Date”) even if Notes are canceled
after the record date and on or before the Interest Payment
Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. The Company will make
all money payments in respect of a certificated Note (including principal and
interest), at the office of the Paying Agent or, at the option of the Company,
by mailing a check to the registered address of each Holder thereof; provided, however, that money payments
on the Notes shall be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States of America if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its
discretion).
3. Paying Agent and
Registrar
Initially, The Bank of New York
Mellon, a banking corporation organized under the laws of the State of
New York (the “Trustee”), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent or
Registrar without notice. The Company or any of its domestically
incorporated Subsidiaries may act as Paying Agent and Registrar.
4. Indenture and
Guarantees
The Company issued the Notes under an
Indenture, dated as of March 15, 2010 (the “Indenture”), among the Company, the
Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
date of the Indenture (the “TIA”). Terms defined in the Indenture and
used but not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all terms and provisions of the
Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Notes are senior subordinated
unsecured obligations of the Company. This Note is one of the series
of the Notes that are referred to in the Indenture issued in an aggregate
original principal amount of $625,000,000. The Notes include the
Notes issued on the Closing Date and any Additional Notes. The Notes
issued on the Closing Date and Additional Notes, if any, are treated as a single
class of Notes under the Indenture. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of Capital Stock of such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates and make asset sales. The Indenture also imposes
limitations on the ability of the Company to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all of the
property of the Company.
The Notes are guaranteed, on a senior
subordinated unsecured basis, by all existing and future Restricted Subsidiaries
that are or shall become Guarantors in accordance with the terms of the
Indenture.
5. Subordination
The Notes are unsecured obligations of
the Company and subordinated in right of payment, in the manner and to the
extent set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed. Each Holder by
his acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such
purposes.
6. Optional
Redemption
Except as set forth in the following
two paragraphs, the Company may not redeem the Notes prior to March 15,
2014. On and after this date, the Company may redeem the Notes, in
whole or in part, on not less than thirty (30) nor more than sixty (60) days’
prior notice, at the following redemption prices (expressed as percentages of
principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve month period commencing on March 15 of the years set forth
below:
|
Year
|
Redemption Price
|
|
2014
|
104.375%
|
|
2015
|
102.188%
|
|
2016
and thereafter
|
100.000%
|
At any time prior to March 15, 2014, we
may redeem all or part of the Notes upon not less than 30 nor more than 60 days’
prior notice at a redemption price equal to the sum of (i) 100% of the principal
amount thereof, plus (ii) the Applicable Premium as of the date of redemption,
plus (iii) accrued and unpaid interest, if any, to the date of
redemption.
Prior to March 15, 2013, the Company
may, on one or more occasions, also redeem up to a maximum of 35% of the
aggregate principal amount of the Notes (calculated giving effect to any
issuance of Additional Notes) with the Net Cash Proceeds of one or more Equity
Offerings by the Company, at a redemption price equal to 108.750% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided however, that after giving
effect to such redemption:
(a) at
least 65% of the aggregate principal amount of the Notes (calculated giving
effect to any issuance of Additional Notes) remains outstanding;
and
(b) any
such redemption by the Company must be made within 60 days of such Equity
Offering and must be made in accordance with certain procedures set forth in the
Indenture.
7. Sinking
Fund
The Notes are not subject to any
sinking fund.
8. Notice of
Redemption
Notice of redemption will be mailed by
first-class mail at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such Holder’s
registered address. Notes in denominations larger than $2,000 may be
redeemed in part but only
in multiples of $1,000. If money sufficient to pay the Redemption
Price of and accrued and unpaid interest on all Notes (or portions thereof) to
be redeemed on the Redemption Date is deposited with the Paying Agent on or
before the Redemption Date and certain other conditions are satisfied, on and
after such date, cash interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
9. Repurchase of Notes at the
Option of Holders upon Change of Control and Sale of Assets
Upon the occurrence of a Change of
Control, each Holder of Notes shall have the right, subject to certain
conditions specified in the Indenture, to require the Company to repurchase all
or any part of the Notes of such Holder at a purchase price in cash equal to
101% of the aggregate principal amount of the Notes to be repurchased, plus
accrued and unpaid interest thereon in respect thereof to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant Interest Payment Date) as provided in, and
subject to the terms of, the Indenture.
In accordance with Section 4.10 of
the Indenture, the Company will be required to offer to purchase Notes upon the
occurrence of certain sales of assets.
10. Denominations; Transfer;
Exchange
The Notes are in registered form
without coupons in denominations of $2,000 and multiples of $1,000 in excess
thereof. A Holder may transfer or exchange Notes in accordance with
the Indenture. Upon any transfer or exchange, the Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Company shall not be required to make
and the Registrar need not register transfers or exchanges of Notes selected for
redemption (except, in the case of a Note to be redeemed in part, the portion of
the Note not to be redeemed) or any Notes for a period of 15 days prior to a
selection of Notes to be redeemed.
11. Persons Deemed
Owners
Except as provided in paragraph 2
hereof, the registered Holder of this Note shall be treated as the owner of it
for all purposes.
12. Unclaimed
Money
If money for the payment of principal
of or interest on the Notes has been deposited with the Trustee or Paying Agent
and remains unclaimed for two years after such amount is due and payable, the
Trustee or Paying Agent shall pay the money back to the Company at its written
request unless an abandoned property law designates another
Person. After any such payment, the Trustee and the Paying Agent
shall have no further liability for such funds and Holders entitled to the money
must look only to the recipient and not to the Trustee for payment.
13. Discharge and
Defeasance
Subject to certain conditions, the
Company at any time may terminate some of or all its obligations under the Notes
and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal of and interest on the
Notes to redemption or maturity, as the case may be.
14. Amendment,
Waiver
Subject to certain exceptions set forth
in the Indenture, (a) the Indenture or the Notes may be amended without prior
notice to any Holder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange for the Notes)
and (b) any default may be waived with the written consent of the Holders of at
least a majority in principal amount of the outstanding
Notes. Subject to certain exceptions set forth in the Indenture,
without notice to or the consent of any Holder of Notes, the Company, the
Guarantors and the Trustee may amend the Indenture or the Notes
to: (a) cure any ambiguity, omission, defect or inconsistency; (b)
provide for the assumption by a successor entity of the obligations of the
Company under the Indenture; (c) provide for uncertificated Notes in addition to
or in place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Code; (d) add additional
Guarantees of the Notes; (e) secure the Notes; (f) add to the covenants of the
Company for the benefit of the Holders or to surrender any right or power
conferred upon the Company in the Indenture; (g) comply with any requirement of
the Commission in connection with qualifying, or maintaining the qualification
of, the Indenture under the TIA; (h) make any change that does not adversely
affect the rights of any Holder, subject to the provisions of the Indenture; (i)
provide for the issuance of Additional Notes; (j) change the name or title of
the Notes, and any conforming changes related thereto or (k) to conform the text
of the Indenture, the Notes or the Note Guarantees to any provision under the
heading “Description of Notes” in the prospectus supplement, dated March 10,
2010 related to the offering and sale by the Company of the Notes, to the extent
that such provision in the Indenture, the Notes or the Note Guarantees was
intended to be a verbatim recitation of a provision under such
heading.
15. Defaults, Remedies and
Acceleration
If an Event of Default (other than an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company) occurs and is continuing, the Trustee or the
Holders of 25% or more in principal amount of the outstanding Notes may declare
the principal of and accrued but unpaid interest on all the Notes to be due and
payable. Upon such a declaration, such principal and interest shall
be due and payable immediately. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Notes shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. Under certain circumstances, the Holders
of a majority in principal amount of the Notes may rescind any such acceleration
with respect to the Notes and its consequences.
Subject to the provisions of the
Indenture relating to the duties of the Trustee, in case an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise
any rights or powers under the Indenture at the request or direction of any of
the Holders, unless such Holders have offered to the Trustee indemnity or
security satisfactory to the Trustee against
any loss, liability or expense. Except to enforce the right to
receive payment of principal or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Notes unless (i) such Holder has
previously given to the Trustee written notice stating that an Event of Default
is continuing, (ii) Holders of at least 25% in principal amount of the
outstanding Notes have requested the Trustee in writing to pursue the remedy,
(iii) such Holder or Holders have offered to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense, (iv) the
Trustee has not complied with such request within 60 days after receipt of the
request and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Notes have not given the Trustee a
direction inconsistent with such request during such 60-day
period. Subject to certain restrictions, the Holders of a majority in
principal amount of the outstanding Notes are given the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction
that conflicts with law or the Indenture or, subject to certain exceptions in
the Indenture, that the Trustee determines is unduly prejudicial to the rights
of other Holders or would involve the Trustee in personal
liability. Prior to taking any action under the Indenture, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
16. Trustee Dealings with the
Company
Subject to certain limitations imposed
by the TIA, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
and collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.
17. No Recourse Against
Others
A director, officer, employee or
stockholder, as such, of the Company or any of the Subsidiaries shall not have
any liability for any obligations of the Company or any of the Subsidiaries
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note,
each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
18. Authentication
This Note shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Note.
19. Abbreviations
Customary abbreviations may be used in
the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
20. Governing
Law
THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT 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.
21.
CUSIP
Numbers
The Company has caused CUSIP numbers to
be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder
of Notes upon written request and without charge to the Holder a copy of the
Indenture which has in it the text of this Note.
ASSIGNMENT
FORM
To assign
this Note, fill in the form below:
|
I
or we assign and transfer this Note to
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||
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(Print
or type assignee’s name, address and zip code)
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(Insert
assignee’s soc. sec. or tax I.D. No.)
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and
irrevocably
appoint agent
to transfer this Note on the books of the Company. The agent
may substitute another to act for him.
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||||||
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Date:
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Your
Signature:
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Sign
exactly as your name appears on the other side of this
Note.
|
||||||
OPTION OF
HOLDER TO ELECT PURCHASE
If you want to elect to have this Note
purchased by the Company pursuant to Section 4.09 (Change of Control) or
Section 4.10 (Application of Excess Proceeds from Sale of Assets) of the
Indenture, check the box:
|
*
|
*
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Application
of Excess Proceeds
from
Sale of Assets
|
Change
of Control
|
If you want to elect to have only part
of this Note purchased by the Company pursuant to Section 4.09 or
4.10 of the
Indenture, state the principal amount ($2,000 or a multiple of $1,000 in excess
thereof):
$
Date: __________________
Your Signature: __________________
(Sign
exactly as your name appears on the other side of the Note)
|
Signature Guarantee:
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|
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Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the
Trustee
|
[TO BE
ATTACHED TO GLOBAL NOTES]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL NOTE
The
following increases or decreases in this Global Note have been
made:
|
Date
of
Exchange
|
Amount
of
decrease
in
Principal
Amount
of this
Global
Note
|
Amount
of
increase
in
Principal
Amount
of this
Global
Note
|
Principal
Amount
of this
Global
Note
following
such
decrease
or
increase
|
Signature
of
authorized
officer
of
Trustee or
Notes
Custodian
|
||||
FORM OF
SUPPLEMENTAL GUARANTEE
SUPPLEMENTAL GUARANTEE (this
“Supplemental Guarantee”), dated as of _______________, between
____________________ (the “New Guarantor”), a direct or indirect subsidiary of
Cincinnati Bell Inc. (or its successor), an Ohio corporation (the “Company”),
and The Bank of New York Mellon, as trustee (the “Trustee”).
W I T N E
S S E T H :
WHEREAS, the Company and the
Subsidiaries listed on the signature pages thereof have each heretofore executed
and delivered to the Trustee an Indenture (the “Indenture”), dated as of March
15, 2010, providing for the issuance by the Company of its 8¾% Senior
Subordinated Notes due 2018 (the “Notes”); and
WHEREAS, Section 10.04 of the
Indenture provides that under certain circumstances the Company is required to
cause the New Guarantor to execute and deliver to the Trustee for the benefit of
the Holders a supplemental agreement pursuant to which the New Guarantor shall
unconditionally guarantee all of the Company’s obligations under the Notes
pursuant to a Note Guarantee on the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the New Guarantor covenants and agrees for the equal and
ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED
TERMS. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
2. AGREEMENT
TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally
with all other Guarantors, to unconditionally guarantee the Company’s
obligations under the Notes on the terms and subject to the conditions set forth
in Article 10 of the Indenture and to be bound by all other applicable
provisions of the Indenture.
3. RATIFICATION
OF SUPPLEMENTAL GUARANTEE; SUPPLEMENTAL GUARANTEES PART OF
INDENTURE. Except as expressly amended hereby, the Indenture is in
all respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental
Guarantee shall form a part of the Indenture for all purposes, and every holder
of Notes heretofore or hereafter authenticated and delivered shall be bound
hereby.
4. NO
RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator
or stockholder of the New Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Notes, any Note Guarantee,
the Indenture or this Supplemental Guarantee or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the
Notes. Such waiver may not be effective to waive liabilities under
the federal securities laws and it is the view of the Securities and Exchange
Commission that such a waiver is against public policy.
5. EFFECTIVENESS. This
Supplemental Guarantee shall be effective upon execution by the parties
hereto.
6. RECITALS. The
recitals contained herein shall be taken as the statements of the Company and
the Guarantors; the Trustee assumes no responsibility for their
correctness.
7. NEW
YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT 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.
8. TRUSTEE
MAKES NO REPRESENTATION. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Guarantee.
9. COUNTERPARTS. The
parties may sign any number of copies of this Supplemental
Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. EFFECT
OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
| [New Guarantor] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
FORM OF
NOTATION OF GUARANTEE
The undersigned have guaranteed this
Note on a senior subordinated basis as provided in the Indenture.
| [GUARANTOR] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
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