EXHIBIT (b)(3)
================================================================================
SAINT ACQUISITION CORPORATION,
AS MERGER SUB,
SAINT CORPORATION,
AS PARENT,
AND FOLLOWING THE MERGER OF SAINT ACQUISITION CORPORATION
WITH AND INTO SWIFT TRANSPORTATION CO., INC.,
SWIFT TRANSPORTATION CO., INC.,
AS THE COMPANY,
AND
THE SUBSIDIARY GUARANTORS
12 1/2%SECOND-PRIORITY SENIOR SECURED FIXED RATE NOTES DUE 2017
----------------------------
INDENTURE
DATED AS OF MAY 10, 2007
----------------------------
----------------------------
U.S. BANK NATIONAL ASSOCIATION,
AS THE TRUSTEE
----------------------------
================================================================================
CROSS-REFERENCE TABLE
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................. 7.10
(a)(2)................................................. 7.10
(a)(3)................................................. N.A.
(a)(4)................................................. N.A.
(a)(5)................................................. 7.10
(b).................................................... 7.10
(c).................................................... N.A.
311(a).................................................... 7.11
(b).................................................... 7.11
(c).................................................... N.A.
312(a).................................................... 2.05
(b).................................................... 13.03
(c).................................................... 13.03
313(a).................................................... 7.06
(b)(2)................................................. 7.06; 7.07
(c).................................................... 7.06; 13.02
(d).................................................... 7.06
314(a).................................................... 4.03; 13.02; 13.05
(c)(1)................................................. 13.04
(c)(2)................................................. 13.04
(c)(3)................................................. N.A.
(e).................................................... 13.05
(f).................................................... N.A.
315(a).................................................... 7.01
(b).................................................... 7.05, 13.02
(c).................................................... 7.01
(d).................................................... 7.01
(e).................................................... 6.11
316(a) (last sentence).................................... 2.09
(a)(1)(A).............................................. 6.05
(a)(1)(B).............................................. 6.04
(a)(2)................................................. N.A.
(b).................................................... 6.07
(c).................................................... 2.12
317(a)(1)................................................. 6.08
(a)(2)................................................. 6.09
(b).................................................... 2.04
318(a).................................................... N.A.
(b).................................................... N.A.
(c).................................................... 13.01
N.A. means not applicable.
* This Cross Reference Table is not part of this Indenture.
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE........................................................ 1
SECTION 1.01 Definitions.......................................................................... 1
SECTION 1.02 Other Definitions.................................................................... 28
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.................................... 29
SECTION 1.04 Rules of Construction................................................................ 29
ARTICLE 2 THE NOTES......................................................................................... 30
SECTION 2.01 Form and Dating...................................................................... 30
SECTION 2.02 Execution and Authentication......................................................... 31
SECTION 2.03 Registrar and Paying Agent........................................................... 32
SECTION 2.04 Paying Agent to Hold Money in Trust.................................................. 32
SECTION 2.05 Holder Lists......................................................................... 32
SECTION 2.06 Transfer and Exchange................................................................ 32
SECTION 2.07 Replacement Notes.................................................................... 45
SECTION 2.08 Outstanding Notes.................................................................... 45
SECTION 2.09 Treasury Notes....................................................................... 45
SECTION 2.10 Temporary Notes...................................................................... 46
SECTION 2.11 Cancellation......................................................................... 46
SECTION 2.12 Defaulted Interest................................................................... 46
ARTICLE 3 REDEMPTION AND PREPAYMENT......................................................................... 46
SECTION 3.01 Notices to Trustee................................................................... 46
SECTION 3.02 Selection of Notes to Be Redeemed or Purchased....................................... 47
SECTION 3.03 Notice of Redemption................................................................. 47
SECTION 3.04 Effect of Notice of Redemption....................................................... 48
SECTION 3.05 Deposit of Redemption or Purchase Price.............................................. 48
SECTION 3.06 Notes Redeemed or Purchased in Part.................................................. 48
SECTION 3.07 Optional Redemption.................................................................. 49
SECTION 3.08 Mandatory Redemption................................................................. 49
SECTION 3.09 Offer to Purchase by Application of Excess Designated Proceeds or Excess Proceeds.... 50
ARTICLE 4 COVENANTS......................................................................................... 52
SECTION 4.01 Payment of Notes..................................................................... 52
SECTION 4.02 Maintenance of Office or Agency...................................................... 52
SECTION 4.03 Reports.............................................................................. 53
SECTION 4.04 Compliance Certificate............................................................... 55
SECTION 4.05 Taxes................................................................................ 55
iii
SECTION 4.06 Stay, Extension and Usury Laws....................................................... 56
SECTION 4.07 Restricted Payments.................................................................. 56
SECTION 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries....................... 60
SECTION 4.09 Incurrence of Indebtedness and Issuance of Preferred Equity.......................... 62
SECTION 4.10 Asset Sales.......................................................................... 67
SECTION 4.11 Transactions with Affiliates......................................................... 68
SECTION 4.12 Liens................................................................................ 70
SECTION 4.13 Business Activities.................................................................. 70
SECTION 4.14 Corporate Existence.................................................................. 71
SECTION 4.15 Offer to Repurchase Upon Change of Control........................................... 71
SECTION 4.16 No Layering of Debt.................................................................. 73
SECTION 4.17 Limitation on Sale and Leaseback Transactions........................................ 73
SECTION 4.18 Payments for Consent................................................................. 73
SECTION 4.19 Additional Note Guarantees........................................................... 74
SECTION 4.20 Designation of Restricted and Unrestricted Subsidiaries.............................. 74
SECTION 4.21 Amendment of Security Documents...................................................... 74
SECTION 4.22 After-Acquired Property.............................................................. 75
ARTICLE 5 SUCCESSORS........................................................................................ 75
SECTION 5.01 Merger, Consolidation, or Sale of Assets............................................. 75
SECTION 5.02 Successor Corporation Substituted.................................................... 77
ARTICLE 6 DEFAULTS AND REMEDIES............................................................................. 78
SECTION 6.01 Events of Default.................................................................... 78
SECTION 6.02 Acceleration......................................................................... 80
SECTION 6.03 Other Remedies....................................................................... 80
SECTION 6.04 Waiver of Past Defaults.............................................................. 80
SECTION 6.05 Control by Majority.................................................................. 80
SECTION 6.06 Limitation on Suits.................................................................. 81
SECTION 6.07 Rights of Holders of Notes to Receive Payment........................................ 81
SECTION 6.08 Collection Suit by Trustee........................................................... 81
SECTION 6.09 Trustee May File Proofs of Claim..................................................... 81
SECTION 6.10 Priorities........................................................................... 82
SECTION 6.11 Undertaking for Costs................................................................ 82
ARTICLE 7 TRUSTEE........................................................................................... 82
SECTION 7.01 Duties of Trustee.................................................................... 82
SECTION 7.02 Rights of Trustee.................................................................... 84
SECTION 7.03 Individual Rights of Trustee......................................................... 85
SECTION 7.04 Trustee's Disclaimer................................................................. 86
SECTION 7.05 Notice of Defaults................................................................... 86
SECTION 7.06 Reports by Trustee to Holders of the Notes........................................... 86
SECTION 7.07 Compensation and Indemnity........................................................... 86
SECTION 7.08 Replacement of Trustee............................................................... 87
SECTION 7.09 Successor Trustee by Merger, etc..................................................... 88
SECTION 7.10 Eligibility; Disqualification........................................................ 88
SECTION 7.11 Preferential Collection of Claims Against Issuer..................................... 88
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................................................... 89
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance............................. 89
SECTION 8.02 Legal Defeasance and Discharge....................................................... 89
SECTION 8.03 Covenant Defeasance.................................................................. 89
SECTION 8.04 Conditions to Legal or Covenant Defeasance........................................... 90
SECTION 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions........................................................................ 91
SECTION 8.06 Repayment to the Issuer.............................................................. 92
SECTION 8.07 Reinstatement........................................................................ 92
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER.................................................................. 92
SECTION 9.01 Without Consent of Holders of Notes.................................................. 92
SECTION 9.02 With Consent of Holders of Notes..................................................... 93
SECTION 9.03 Compliance........................................................................... 95
SECTION 9.04 Revocation and Effect of Consents.................................................... 95
SECTION 9.05 Notation on or Exchange of Notes..................................................... 96
SECTION 9.06 Trustee to Sign Amendments, etc...................................................... 96
ARTICLE 10 COLLATERAL........................................................................................ 96
SECTION 10.01 Security Documents.................................................................. 96
SECTION 10.02 Second Lien Agent................................................................... 97
SECTION 10.03 Authorization of Actions to Be Taken................................................ 98
SECTION 10.04 Release of Liens.................................................................... 99
SECTION 10.05 Filing, Recording and Opinions...................................................... 100
SECTION 10.06 Powers Exercisable by Receiver or Trustee........................................... 101
SECTION 10.07 Release Upon Termination of the Issuer's Obligations................................ 101
SECTION 10.08 Designations........................................................................ 101
ARTICLE 11 NOTE GUARANTEES................................................................................... 102
SECTION 11.01 Guarantee........................................................................... 102
SECTION 11.02 Limitation on Guarantor Liability................................................... 103
SECTION 11.03 Execution and Delivery of Note Guarantee............................................ 103
SECTION 11.04 Subsidiary Guarantors May Consolidate, etc., on Certain Terms....................... 104
SECTION 11.05 Releases............................................................................ 105
ARTICLE 12 SATISFACTION AND DISCHARGE........................................................................ 106
SECTION 12.01 Satisfaction and Discharge.......................................................... 106
SECTION 12.02 Application of Trust Money.......................................................... 107
ARTICLE 13 MISCELLANEOUS..................................................................................... 107
SECTION 13.01 Trust Indenture Act Controls........................................................ 107
SECTION 13.02 Notices............................................................................. 107
SECTION 13.03 Communication by Holders of Notes with Other Holders of Notes....................... 108
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.................................. 108
SECTION 13.05 Statements Required in Certificate or Opinion....................................... 109
SECTION 13.06 Rules by Trustee and Agents......................................................... 110
SECTION 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders............ 110
SECTION 13.08 Governing Law....................................................................... 110
SECTION 13.09 No Adverse Interpretation of Other Agreements....................................... 110
SECTION 13.10 Successors.......................................................................... 110
SECTION 13.11 Severability........................................................................ 110
SECTION 13.12 Counterpart Originals............................................................... 110
SECTION 13.13 Table of Contents, Headings, etc.................................................... 110
SECTION 13.14 Benefits of Indenture............................................................... 111
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTE GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
INDENTURE, dated as of May 10, 2007, among Saint Acquisition Corporation,
a Nevada corporation ("Merger Sub"), Saint Corporation, a Nevada corporation
("Parent"), and U.S. Bank National Association, a national banking association,
as trustee (the "Trustee"), and, upon the merger of Saint Acquisition
Corporation with and into Swift Transportation Co., Inc. and the execution and
delivery of a supplemental indenture, Swift Transportation Co., Inc., a Nevada
corporation (the "Company"), and the Subsidiary Guarantors (as defined herein).
Merger Sub has duly authorized the creation of an issue of 12
1/2%Second-Priority Senior Secured Fixed Rate Notes due 2017 issued on the date
hereof as provided in this Indenture, and to provide therefor Merger Sub has
duly authorized the execution and deliver of this Indenture.
Parent has duly authorized its Note Guarantee of the Notes, and to provide
therefor Merger Sub has duly authorized the execution and deliver of this
Indenture.
All things necessary to make this Indenture a valid agreement of Merger
Sub and Parent, in accordance with its terms, has been done.
Merger Sub, Parent and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into such specified Person or at such time such
other Person became a Restricted Subsidiary of Parent, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such
other Person merging with or into such specified Person or becoming a
Restricted Subsidiary of Parent; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Additional Notes" means an unlimited principal amount of additional Notes
(other than the Initial Notes) issued under this Indenture in accordance with
Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means 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. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have correlative
meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"Asset Sale" means:
(1) the sale, lease (other than operating leases entered into in the
ordinary course of business), conveyance or other disposition of any
assets or rights; provided, that, the sale, lease, conveyance or other
disposition of all or substantially all of the assets of Parent, the
Issuer and Parent's Restricted Subsidiaries taken as a whole will be
governed by Section 4.15 and/or Section 5.01 and not by Section 4.10; and
(2) the issuance or sale of Equity Interests in the Issuer or any of
Parent's Restricted Subsidiaries.
Notwithstanding the preceding, none of the following items will be deemed
to be an Asset Sale:
(1) any single transaction or series of related transactions that
involves assets having a Fair Market Value of less than $1.0 million;
(2) a transfer of assets between or among Parent, the Issuer and any
of Parent's Restricted Subsidiaries;
(3) an issuance or sale of Equity Interests by the Issuer or a
Restricted Subsidiary of Parent to Parent, the Issuer or to another
Restricted Subsidiary of Parent;
(4) the sale or lease of inventory, equipment, products or services
or the licensing or lease, assignment or sub-lease of any real or personal
property in the ordinary course of business;
(5) the sale or disposition or discounting of accounts receivable in
the ordinary course of business;
(6) any sale or other disposition of damaged, worn-out, obsolete or
no longer useful assets in the ordinary course of business, including
Motor Vehicles;
2
(7) any sale or disposition of assets received by Parent, the Issuer
or any of Parent's Restricted Subsidiaries upon the foreclosure on a Lien;
(8) the sale or other disposition of cash, Cash Equivalents or
Marketable Securities;
(9) a Restricted Payment that does not violate Section 4.07;
(10) the granting of Liens not otherwise prohibited by this
Indenture; and
(11) the surrender or waiver of contract rights or settlement,
release or surrender of contract, tort or other claims.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value 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. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP; provided,
however, that if such sale and leaseback transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of "Capital Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on behalf of
such board;
(2) with respect to a partnership, the Board of Directors or other
governing body of the general partner of the partnership;
(3) with respect to a limited liability company, the Board of
Directors or other governing body, and in the absence of same, the manager
or board of managers or the managing member or members or any controlling
committee thereof; and
(4) with respect to any other Person, the board or committee of such
Person serving a similar function.
3
"Business Day" means a day other than a Saturday, Sunday or other day on
which banking institutions are authorized or required by law to close in New
York State.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet (excluding the
footnotes thereto) prepared in accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity that is not a
corporation, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
"Captive Insurance Company" means Mohave Transportation Insurance Company,
an Arizona corporation.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the
United States government (provided that the full faith and credit of the
United States is pledged in support of those securities) having maturities
of not more than one year from the date of acquisition;
(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight
bank deposits, in each case, with any lender party to the Credit Agreement
or with any domestic commercial bank having capital and surplus in excess
of $500.0 million and a rating at the time of acquisition thereof of P-1
or better from Moody's or A-1 or better from S&P;
(4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;
4
(5) commercial paper having, at the time of acquisition, one of the
two highest ratings obtainable from Moody's or S&P and, in each case,
maturing within one year after the date of acquisition;
(6) securities issued or fully guaranteed by any state or
commonwealth of the United States, or by any political subdivision or
taxing authority thereof having, at the time of acquisition, one of the
two highest ratings obtainable from Moody's or S&P, and, in each case,
maturing within one year after the date of acquisition; and
(7) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through
(6) of this definition.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of Parent, the Issuer and Parent's Restricted
Subsidiaries, in each case, taken as a whole, to any "person" (as that
term is used in Section 13(d)(3) of the Exchange Act) other than the
Permitted Holders;
(2) the adoption of a plan relating to the liquidation or
dissolution of Parent or the Issuer;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" or "group" (as such terms are used in Sections 13(d) of the
Exchange Act), other than the Permitted Holders, becomes the Beneficial
Owner, directly or indirectly, of more than 50% of the voting power of the
Voting Stock of Parent;
(4) the first day on which a majority of the members of the Board of
Directors of Parent or the Issuer are not Continuing Directors; or
(5) Parent ceases to be the owner, directly or indirectly, of 100%
of the total voting power of the Voting Stock of the Issuer.
"Clearstream" means Clearstream Banking, S.A.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all property subject or purported to be subject, from
time to time, to a Lien under any Security Documents.
"Collateral Sharing Agreement" means the Collateral Sharing Agreement,
dated as of the Issue Date, by and among the Trustee, U.S. Bank National
Association, as trustee under the Floating Rate Indenture, and U.S. Bank
National Association, as Second Lien Agent.
"Company" means Swift Transportation Co., Inc., a Nevada corporation, and
any and all successors thereto.
5
"Consolidated Cash Flow" means, for any period, the Consolidated Net
Income of Parent for such period plus, without duplication:
(1) an amount equal to any extraordinary loss plus any net loss
realized by Parent, the Issuer or any of Parent's Restricted Subsidiaries
in connection with an Asset Sale, to the extent such losses were deducted
in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of Parent, the
Issuer and Parent's Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such Consolidated
Net Income; plus
(3) the Fixed Charges of Parent, the Issuer and Parent's Restricted
Subsidiaries for such period, to the extent that such Fixed Charges were
deducted in computing such Consolidated Net Income; plus
(4) with respect to the period in which the Merger Date occurs, the
aggregate amount of fees, costs, and expenses incurred by Parent, the
Issuer and the Restricted Subsidiaries in connection with the Merger and
the related financing thereof to the extent not in excess of an aggregate
of $45 million; plus
(5) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses other than
debt issuance costs to the extent they relate to the issuance of any debt
after the sale of the Notes and the closing of the Credit Agreement) and
other non-cash expenses (excluding any such non-cash expense to the extent
that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense other than debt
issuance costs to the extent they relate to the issuance of any debt after
the sale of the Notes and the closing of the Credit Agreement) of Parent,
the Issuer and Parent's Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses
were deducted in computing such Consolidated Net Income; minus
(6) non-cash items increasing such Consolidated Net Income for such
period, other than (x) the accrual of revenue in the ordinary course of
business and (y) any items that represent the reversal in such period of
any accrual of, or cash reserve for, anticipated charges made in any prior
period,
in each case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the sum, without
duplication of:
(1) the consolidated interest expense of Parent, the Issuer and
Parent's Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization, expensing or write-off of
debt issuance costs, original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts
and other fees and charges incurred in respect of letter of credit or
bankers' acceptance
6
financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations in respect of interest rates; plus
(2) the consolidated interest expense of Parent, the Issuer and
Parent's Restricted Subsidiaries that was capitalized during such period;
plus
(3) any interest expense on Indebtedness of another Person that is
guaranteed by Parent, the Issuer or one of Parent's Restricted
Subsidiaries or secured by a Lien on assets of Parent, the Issuer or one
of Parent's Restricted Subsidiaries, whether or not such guarantee or Lien
is called upon.
"Consolidated Net Income" means, for any period, the aggregate of the Net
Income of Parent, the Issuer and Parent's Restricted Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided
that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary of Parent or that is accounted for by the equity
method of accounting will be included only to the extent that (x) such Net
Income is actually dividended or distributed in cash to Parent, the Issuer
or a Restricted Subsidiary of Parent or (y) any of Parent, the Issuer or a
Restricted Subsidiary has the present ability to require such Unrestricted
Subsidiary to dividend or distribute such Net Income to Parent, the Issuer
or such Restricted Subsidiary;
(2) the Net Income of any Restricted Subsidiary of Parent will be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is
not at the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, except to
the extent that any dividend or distribution is actually made in cash and
not otherwise included therein;
(3) the cumulative effect of a change in accounting principles will
be excluded;
(4) any net gain (but not loss) resulting from an Asset Sale by
Parent, the Issuer or any of Parent's Restricted Subsidiaries other than
in the ordinary course of business will be excluded;
(5) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued) will be
excluded; and
(6) all gains, losses, charges or write-offs with respect to an
election to be taxed as an "S corporation" under Subchapter S of the Code
shall be excluded.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Issuer or Parent, as the case may be, who:
7
(1) was a member of such Board of Directors on the Merger Date, or
(2) was nominated for election or elected to such Board of Directors
by the Permitted Holders or with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Issuer.
"Credit Agreement" means that certain credit agreement, to be dated as of
the Merger Date, by and among the Issuer, the guarantors party thereto, the
lenders specified therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Wachovia Bank,
National Association, and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as the co-syndication
agents, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as the documentation agent and
administrative agent, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and, in
each case, as amended, restated, modified, renewed, refunded, replaced (whether
upon or after termination or otherwise) or refinanced (including by means of
sales of debt securities to institutional investors) in whole or in part from
time to time.
"Credit Facilities" means, one or more debt facilities (including, without
limitation, the Credit Agreement) or commercial paper facilities, in each case,
with banks or other institutional lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Discharge of Senior Lender Claims" shall mean, except to the extent
otherwise provided in the Intercreditor Agreement, payment in full in cash
(except for contingent indemnities and cost and reimbursement obligations to the
extent no claim has been made) of (a) all Obligations in respect of all
outstanding First Priority Lien Obligations and, with respect to letters of
credit or
8
letter of credit guaranties outstanding thereunder, delivery of cash collateral
or backstop letters of credit in respect thereof in compliance with the Credit
Facilities, in each case after or concurrently with the termination of all
commitments to extend credit thereunder and (b) any other First Priority Lien
Obligations that are due and payable or otherwise accrued and owing at or prior
to the time such principal and interest are paid; provided that the Discharge of
Senior Lender Claims shall not be deemed to have occurred if such payments are
made with the proceeds of other First Priority Lien Obligations that constitute
an exchange or replacement for or a refinancing of such Obligations or First
Priority Lien Obligations. In the event the First Priority Lien Obligations are
modified and the Obligations are paid over time or otherwise modified pursuant
to Section 1129 of the Bankruptcy Law, the First Priority Lien Obligations shall
be deemed to be discharged when the final payment is made, in cash, in respect
of such indebtedness and any obligations pursuant to such new indebtedness shall
have been satisfied.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Issuer to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Issuer may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07. The amount of Disqualified Stock deemed to be
outstanding at any time for purposes of this Indenture will be the maximum
amount that Parent, the Issuer and Parent's Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means an offer and sale of Capital Stock (other than
Disqualified Stock) of Parent (to the extent the net proceeds therefrom are
contributed to the equity capital of the Issuer) pursuant to a registration
statement that has been declared effective by the SEC pursuant to the Securities
Act (other than a registration statement on Form S-8 or otherwise relating to
equity securities issuable under any employee benefit plan of Parent).
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the Euroclear
system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the value that would be paid by a willing buyer
to an unaffiliated willing seller in a transaction not involving distress or
necessity of either party, and, in the case of any transaction involving
aggregate consideration in excess of $10.0 million,
9
determined in good faith by the Board of Directors of the Issuer (unless
otherwise provided in this Indenture).
"First Lien Agent" has the meaning given to such term in the Intercreditor
Agreement.
"First Priority After-Acquired Property" means any property (other than
the initial collateral) of Parent, the Issuer or any Subsidiary Guarantor that
secures any Secured Bank Indebtedness.
"First Priority Lien Obligations" means (i) all Secured Bank Indebtedness,
(ii) all other Obligations (not constituting Indebtedness) of Parent, the Issuer
and Parent's Restricted Subsidiaries under the agreements governing Secured Bank
Indebtedness and (iii) all other Obligations of Parent, the Issuer or any of
Parent's Restricted Subsidiaries in respect of Hedging Obligations in each case
owing to a Person that is a holder of Indebtedness described in clause (i) or
Obligations described in clause (ii) or an Affiliate of such holder at the time
of entry into such Hedging Obligations, to the extent such Hedging Obligations
are secured by Liens on assets also securing the Secured Bank Indebtedness
(including all Obligations in respect thereof).
"Fixed Charge Coverage Ratio" means, for any period, the ratio of the
Consolidated Cash Flow of Parent for such period to the Fixed Charges of Parent
for such period. In the event that Parent, the Issuer or any of Parent's
Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases,
redeems, defeases or otherwise discharges any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment,
repurchase, redemption, defeasance or other discharge of Indebtedness, or such
issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom, as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by Parent, the Issuer or any of
Parent's Restricted Subsidiaries, including through mergers or
consolidations, or any Person acquired by Parent, the Issuer or any of
Parent's Restricted Subsidiaries, and including any related financing
transactions and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or subsequent to
such reference period and on or prior to the Calculation Date will be
given pro forma effect (in accordance with Regulation S-X under the
Securities Act) as if they had occurred on the first day of the
four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date will be excluded;
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and
ownership interests therein)
10
disposed of prior to the Calculation Date will be excluded, but only to
the extent that the obligations giving rise to such Fixed Charges will not
be obligations of Parent, the Issuer or any of Parent's Restricted
Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary of Parent on the
Calculation Date will be deemed to have been a Restricted Subsidiary at
all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary of Parent on the
Calculation Date will be deemed not to have been a Restricted Subsidiary
at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as at the
Calculation Date in excess of 12 months).
"Fixed Charges" means, for any period, the sum, without duplication, of:
(1) the Consolidated Interest Expense of Parent for such period;
plus
(2) the product of (a) all dividends, whether paid or accrued and
whether or not in cash, on any series of preferred stock of Parent, the
Issuer or any of Parent's Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of Parent (other than
Disqualified Stock) or to Parent, the Issuer or a Restricted Subsidiary of
Parent, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state
and local statutory tax rate of such Person, expressed as a decimal,
in each case, determined on a consolidated basis in accordance with GAAP.
"Floating Rate Indenture" means that certain Indenture, dated the Issue
Date, among Parent, Merger Sub and U.S. Bank National Association, as trustee,
as amended or supplemented from time to time.
"Floating Rate Note Guarantees" means the guarantees by Parent and the
Subsidiary Guarantors of the Issuer's obligations under the Floating Rate
Indenture and the Floating Rate Notes.
"Floating Rate Notes" means the Issuer's Second-Priority Senior Secured
Floating Rate Notes due 2015 issued pursuant to the Floating Rate Indenture.
"Foreign Subsidiary" means any direct or indirect Subsidiary of Parent
that is not organized under the laws of the United States or any state of the
United States or the District of Columbia (which term shall include any
Subsidiary organized under the laws of Puerto Rico).
11
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section 2.06(f)(2),
which is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means securities that are direct non-callable
obligations of, or guaranteed by, the United States of America for the timely
payment of which its full faith and credit is pledged.
"guarantee" means a guarantee, other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner, including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or
from floating to fixed), interest rate cap agreements and interest rate
collar agreements;
(2) other agreements or arrangements designed to manage interest
rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange rates or commodity prices.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
12
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable Debt in
respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the purchase
price of any property or services due more than six months after such
property is acquired or such services are completed; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit,
Attributable Debt and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others secured by
a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
guarantee by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any
other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien
on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of
determination; and
(b) the amount of the Indebtedness of the other Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial Notes" means the first $595.0 million aggregate principal amount
of Notes issued under this Indenture on the date hereof.
13
"Initial Purchasers" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Wachovia
Capital Markets, LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Intercreditor Agreement" means the intercreditor agreement among ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent under the Credit
Agreement, the Trustee, the Issuer, Parent and each Subsidiary Guarantor, as it
may be amended from time to time in accordance with this Indenture.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including guarantees or other obligations), advances or capital
contributions (excluding (A) advances to customers in the ordinary course of
business that are recorded as accounts receivable on the consolidated balance
sheet of such Person and (B) commission, travel and similar advances to officers
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet of such Person prepared in accordance with GAAP.
If Parent, the Issuer or any Restricted Subsidiary of Parent sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of Parent
such that, after giving effect to any such sale or disposition, such Person is
no longer a Subsidiary of Parent, Parent will be deemed to have made an
Investment on the date of any such sale or disposition equal to the Fair Market
Value of Parent's Investments in such Subsidiary that were not sold or disposed
of in an amount determined as provided in the final paragraph of Section 4.07.
The acquisition by Parent, the Issuer or any Restricted Subsidiary of Parent of
a Person that holds an Investment in a third Person will be deemed to be an
Investment by Parent, the Issuer or such Restricted Subsidiary in such third
Person in an amount equal to the Fair Market Value of the Investments held by
the acquired Person in such third Person in an amount determined as provided in
the final paragraph of Section 4.07. Except as otherwise provided in this
Indenture, the amount, or Fair Market Value, of an Investment will be determined
at the time the Investment is made and without giving effect to subsequent
changes in value.
"Issue Date" means May 10, 2007, the date on which the Notes are
originally issued.
"Issuer" means (i) Merger Sub, prior to the Merger, and (ii) the Company,
but not any of its Subsidiaries, following the Merger.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Marketable Securities" means any equity securities that are (i) not
subject to any transfer restrictions arising under contract or applicable laws
(including under federal and state securities
14
laws); and (ii) traded on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market; and (iii) issued by a corporation having
a total equity market capitalization of not less than $250.0 million; provided,
that the excess of (A) the aggregate amount of securities of any one such
corporation held by Parent, the Issuer and any Restricted Subsidiary over (B)
ten times the average daily trading volume of such securities during the 20
immediately preceding trading days shall be deemed not to be Marketable
Securities.
"Merger" means the merger of Merger Sub with and into the Company in
accordance with the terms of the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
January 19, 2007, by and among Parent, Merger Sub and the Company as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Merger Date" means the date of the consummation of the Merger pursuant to
the terms of the Merger Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors and
assigns.
"Motor Vehicle Financing" means a secured debt financing to be entered
into by one or more Motor Vehicle Subsidiaries and/or the New Motor Vehicles
Subsidiary collateralized by specified Motor Vehicles and related assets, which
financing may include (a) one or more tranches of secured debt financings and/or
sale and leasebacks of Motor Vehicles, or (b) one or more put options
exercisable by such Motor Vehicle Subsidiary and/or the New Motor Vehicles
Subsidiary that would require the lender thereunder to purchase specified Motor
Vehicles collateral at certain times and agreed upon prices and to lease back
such Motor Vehicles to such Motor Vehicle Subsidiary and/or the New Motor
Vehicles Subsidiary at certain agreed upon rental prices and lease terms.
"Motor Vehicle Subsidiary" means M.S. Carriers, Inc., a Tennessee
corporation, Sparks Finance Co., Inc., a Nevada corporation, Swift Leasing Co.,
Inc., an Arizona corporation and MS Carriers Warehousing & Distribution, Inc. a
Tennessee corporation.
"Motor Vehicles" means motor vehicles, trailers, and related equipment
owned or leased by Parent or any of its Restricted Subsidiaries.
"Net Income" means, with respect to any specified Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (or loss), together with any related provision for
taxes on such gain (or loss), realized in connection with: (a) any Asset
Sale; or (b) the disposition of any securities by such Person or any of
its Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary or nonrecurring gain (or loss), together with
any related provision for taxes on such extraordinary or nonrecurring gain
(or loss).
15
"Net Proceeds" means the aggregate cash proceeds received by Parent, the
Issuer or any of Parent's Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness, other than
First Priority Lien Obligations, secured by a Lien on the asset or assets that
were the subject of such Asset Sale and any reserve for adjustment in respect of
the sale price of such asset or assets established in accordance with GAAP or
amount placed in an escrow established for purposes of such an adjustment.
"New Motor Vehicles Subsidiary" means a newly-formed special purpose
bankruptcy remote entity formed for the purpose of consummating a Motor Vehicle
Financing.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither Parent, the Issuer nor any of Parent's
Restricted Subsidiaries (a) provides credit support of any kind (including
any undertaking, agreement or instrument that would constitute
Indebtedness), other than a pledge of the Equity Interests of Unrestricted
Subsidiaries, (b) is directly or indirectly liable (as a guarantor or
otherwise), other than by virtue of a pledge of the Equity Interests of
Unrestricted Subsidiaries, or (c) constitutes the lender; and
(2) no default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit, upon notice, lapse of time or both,
any holder of any other Indebtedness (other than the Notes) of Parent, the
Issuer or any of Parent's Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the guarantee by Parent and each Subsidiary
Guarantor of the Issuer's obligations under this Indenture and the Notes
contained in this Indenture.
"Notes" means the 12 1/2% Second-Priority Senior Secured Fixed Rate Notes
due 2017 of the Issuer issued pursuant to this Indenture, including the Initial
Notes and any Additional Notes. The Initial Notes and the Additional Notes shall
be treated as a single class for all purposes under this Indenture, and unless
the context otherwise requires, all references to the Notes shall include the
Initial Notes and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages, costs, expenses and other liabilities
payable under the documentation governing any Indebtedness.
16
"Offering Memorandum" means the certain offering memorandum issued May 3,
2007 by Merger Sub relating to the offering of $595.0 million aggregate
principal amount of the Initial Notes and $240.0 million aggregate principal
amount of the Floating Rate Notes by the Issuer.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Senior Vice President, any Vice President or any Assistant
Vice President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Issuer
by at least two Officers of the Issuer, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Issuer, that meets the requirements of
Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 13.05 hereof.
The counsel may be an employee of or counsel to the Issuer or any Subsidiary of
the Issuer.
"Other Second-Lien Obligations" means other Indebtedness of Parent, the
Issuer and Parent's Restricted Subsidiaries that is equally and ratably secured
with the Notes and is designated by the Issuer as an Other Second-Lien
Obligation.
"Parent" means Saint Corporation, a Nevada corporation, and any and all
successors thereto.
"Pari Passu Indebtedness" means:
(1) with respect to the Issuer, the Second Priority Notes and any
Indebtedness which ranks pari passu in right of payment to the Second
Priority Notes; and
(2) with respect to Parent and any Subsidiary Guarantor, its Note
Guarantee, its Floating Rate Note Guarantee and any Indebtedness which
ranks pari passu in right of payment to Parent's or such Subsidiary
Guarantor's Note Guarantee and Floating Rate Note Guarantee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means the businesses of the Issuer and its
Subsidiaries engaged in on the Issue Date and any other activities that are
similar, ancillary, reasonably related or complementary to, or a reasonable
extension, expansion or development of, such businesses or ancillary thereto.
"Permitted Holders" means the Principal and Related Parties. Any person or
group whose acquisition of beneficial ownership constitutes a Change of Control
in respect of which a Change of Control Offer is made in accordance with the
requirements of this Indenture will thereafter, together with its Affiliates,
constitute an additional Permitted Holder.
17
"Permitted Investments" means:
(1) any Investment in the Issuer or in a Restricted Subsidiary of
Parent;
(2) any Investment in cash, Cash Equivalents or Marketable
Securities;
(3) any Investment by Parent, the Issuer or any Restricted
Subsidiary of Parent in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of Parent; or
(b) such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is
liquidated into, Parent, the Issuer or a Restricted Subsidiary of
Parent;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10;
(5) any Investment the payment for which consists of Equity
Interests (other than Disqualified Stock) of Parent;
(6) any Investments received in compromise or resolution of (A)
obligations of trade creditors or customers that were incurred in the
ordinary course of business of Parent, the Issuer or any of Parent's
Restricted Subsidiaries, including pursuant to any plan of reorganization
or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or other disputes
with Persons who are not Affiliates;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to officers, directors, consultants and
employees of Parent, the Issuer or any Restricted Subsidiary of Parent
made in the ordinary course of business in an aggregate principal amount
not to exceed $5 million at any one time outstanding;
(9) repurchases of the Second Priority Notes;
(10) guarantees issued in accordance with Sections 4.09 and 4.19;
(11) any Investment existing on the Issue Date and any Investment
that replaces, refinances or refunds an existing Investment; provided,
that the new Investment is in an amount that does not exceed the amount
replaced, refinanced or refunded, and is made in the same Person as the
Investment replaced, refinanced or refunded;
(12) receivables owing to Parent, the Issuer or any Restricted
Subsidiary of Parent created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms;
18
(13) 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;
(14) lease, utilities, workers' compensation, performance and
similar deposits made in the ordinary course of business;
(15) Investments in the Captive Insurance Company to the extent that
such Investments shall not exceed the minimum amount of capitalization
required pursuant to applicable regulatory capital requirements;
(16) Investments consisting of the Shareholder Loan in an aggregate
principal amount not to exceed $560 million plus any amounts added to the
principal as paid-in-kind interest;
(17) advances in the ordinary course of business to any independent
contractor performing services for Parent or any of its Restricted
Subsidiaries or any of their agents not to exceed $20 million in the
aggregate at any time outstanding maturing not later than seven years
after the incurrence thereof;
(18) Investments in a Receivables Subsidiary or in any Person by a
Receivables Subsidiary in connection with a Qualified Receivables
Transaction;
(19) Investments in a Foreign Subsidiary in an aggregate amount
which, when taken together with all Investments made pursuant to this
clause (19) since the Issue Date shall not exceed $40 million in the
aggregate; and
(20) additional Investments, when taken together with all other
Investments made pursuant to this clause (20) that are at the time
outstanding, not to exceed $40 million at any one time outstanding;
provided, however, that with respect to any Investment, the Issuer may, in its
sole discretion, allocate all or any portion of any Investment to one or more of
the above clauses (1) through (20) so that all or a portion of the Investment
would be a Permitted Investment.
"Permitted Liens" means:
(1) Liens securing an aggregate principal amount of First Priority
Lien Obligations not to exceed the aggregate amount of Indebtedness
permitted to be incurred pursuant to clause (1) of the definition of
"Permitted Debt";
(2) Liens in favor of Parent, the Issuer or any of Parent's
Restricted Subsidiaries;
(3) Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with Parent, the Issuer or any
Restricted Subsidiary of Parent; provided that such Liens were not
incurred in contemplation of such merger or
19
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with Parent, the Issuer or the
Restricted Subsidiary;
(4) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by Parent, the Issuer or any Restricted
Subsidiary of Parent; provided that such Liens were in existence prior to,
such acquisition, and not incurred in contemplation of, such acquisition
and do not extend to any property other than the property so acquired by
Parent, the Issuer or such Restricted Subsidiary;
(5) Liens or deposits to secure the performance of statutory or
regulatory obligations, or surety, appeal or performance bonds or other
obligations of a like nature or deposits in connection with tenders, bids,
leases, trade contracts, governmental contracts, or other similar
obligations (other than for the payment of Indebtedness), in each case
incurred in the ordinary course of business;
(6) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other assets
relating to such letters of credit and products and proceeds thereof;
(7) Liens to secure Indebtedness permitted to be incurred pursuant
to clause (4) of the definition of "Permitted Debt" covering only the
assets acquired with or financed by such Indebtedness;
(8) Liens existing on the Issue Date (other than Liens of the type
specified in clause (1) above);
(9) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted;
provided that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor;
(10) Liens created for the benefit of (or to secure) (x) the Notes
(or the Note Guarantees) and (y) the Floating Rate Notes issued on the
Issue Date (or the related Floating Rate Note Guarantees);
(11) Liens imposed by law (including, without limitation, Liens in
favor of customers for equipment under order or in respect of advances
paid in connection therewith), such as carriers', warehousemen's,
landlord's, lessor's, suppliers, banks, repairmen's and mechanics' Liens,
in each case, incurred in the ordinary course of business;
(12) Liens incurred or deposits made in the ordinary course of
business to secure payment of workers' compensation or to participate in
any fund in connection with workmen's compensation, unemployment
insurance, old-age pensions or other social security programs;
(13) easements, rights of way, zoning and similar restrictions,
reservations (including severances, leases or reservations of oil, gas,
coal, minerals or water rights),
20
restrictions or encumbrances in respect of real property or title defects
that were not incurred in connection with Indebtedness and that do not in
the aggregate materially adversely affect the value of said properties (as
such properties are used by the Issuer or its Subsidiaries) or materially
impair their use in the operation of the business of the Issuer and its
Subsidiaries;
(14) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided, however, that:
(a) the new Lien shall be limited to all or part of the same
property and assets that secured or, under the written agreements
pursuant to which the original Lien arose, could secure the original
Lien (plus improvements or accessions to such property or proceeds
or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not increased
to any amount greater than the sum of (x) the outstanding principal
amount, or, if greater, committed amount, of the Permitted
Refinancing Indebtedness and (y) an amount necessary to pay any fees
and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge;
(15) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by
Parent, the Issuer or any of Parent's Restricted Subsidiaries in the
ordinary course of business;
(16) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings
that may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such legal
proceedings may be initiated shall not have expired;
(17) Liens securing Hedging Obligations incurred pursuant to clause
(8) of the definition of "Permitted Debt;"
(18) any extension, renewal or replacement, in whole or in part, of
any Lien described in clauses (3), (4), (7) or (8) of the definition of
"Permitted Liens"; provided that any such extension, renewal or
replacement is no more restrictive in any material respect than the Lien
so extended, renewed or replaced and does not extend to any additional
property or assets;
(19) bankers liens and rights of set-off with respect to customary
depositary arrangements entered into in the ordinary course of business of
Parent and its Restricted Subsidiaries;
(20) Liens on accounts receivable, leases or other financial assets
incurred in connection with a Qualified Receivables Transaction;
(21) 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;
21
(22) Liens on insurance policies and the proceeds thereof securing
the financing of the premiums with respect thereto;
(23) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by
Parent and its Restricted Subsidiaries in the ordinary course of business;
(24) Liens on Motor Vehicles and other assets in connection with any
Motor Vehicle Financing otherwise permitted under this Indenture;
(25) Liens to secure Capital Lease Obligations incurred pursuant to
clause (15) of the definition of "Permitted Debt" covering only the assets
acquired with or financed by such Capital Lease Obligations;
(26) Liens to secure Attributable Debt incurred pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09(a) in respect
of sale and leaseback transactions that are otherwise permitted to be
entered into by Parent, the Issuer or any Restricted Subsidiary in
accordance with Section 4.17 in an aggregate amount at any one time
outstanding not to exceed $500 million;
(27) licenses or sublicenses granted to others in the ordinary
course of business; and
(28) other Liens securing Indebtedness that is permitted by the
terms of this Indenture to be outstanding having an aggregate principal
amount at any one time outstanding not to exceed $25 million.
"Permitted Refinancing Indebtedness" means any Indebtedness of Parent, the
Issuer or any of Parent's Restricted Subsidiaries (other than Disqualified
Stock) issued in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge other Indebtedness of Parent,
the Issuer or any of Parent's Restricted Subsidiaries (other than intercompany
Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness renewed, refunded,
refinanced, replaced, defeased or discharged (plus any accrued interest
and premium required to be paid on the Indebtedness being so renewed,
refunded, refinanced, replaced, defeased or discharged, plus the amount of
all fees and expenses incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity
date equal to or later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the remaining Weighted
Average Life to Maturity of, the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged is subordinated in right of payment to
the Notes or the Note Guarantees, such Permitted Refinancing Indebtedness
is subordinated in right of payment
22
to the Notes and the Note Guarantees on terms at least as favorable to the
Holders of Notes and Note Guarantees as those contained in the
documentation governing the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged; and
(4) Permitted Refinancing Indebtedness shall not include (x)
Indebtedness of a Restricted Subsidiary of Parent that is not a Subsidiary
Guarantor that refinances Indebtedness of Parent, the Issuer or a
Restricted Subsidiary of Parent that is a Subsidiary Guarantor, or (y)
Indebtedness of Parent, the Issuer or a Restricted Subsidiary of Parent
that refinances Indebtedness of an Unrestricted Subsidiary.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Principal" means ▇▇▇▇▇ ▇▇▇▇▇.
"Private Placement Legend" means the legend set forth in Section
2.06(f)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Receivables Transaction" means any Receivables Transaction of a
Restricted Subsidiary that meets the following conditions:
(1) the Board of Directors of the Issuer shall have determined in
good faith that such Qualified Receivables Transaction (including
financing terms, covenants, termination events and other provisions) is in
the aggregate economically fair and reasonable to the Issuer and the
Restricted Subsidiary;
(2) all sales of accounts receivable and related assets to the
Restricted Subsidiary are made at Fair Market Value (as determined in good
faith by the Issuer); and
(3) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by
the Issuer) and may include Standard Securitization Undertakings.
The grant of a security interest in any accounts receivable of the Issuer
or any of its Restricted Subsidiaries to secure Indebtedness under the Credit
Agreement shall not be deemed a Qualified Receivables Transaction.
"Receivables Subsidiary" means a wholly owned Restricted Subsidiary of
Parent (or another person formed for the purposes of engaging in Qualified
Receivables Transactions with Parent in which Parent or any Subsidiary of Parent
makes an Investment and to which Parent or any Subsidiary of Parent transfers
accounts receivable and related assets) which engages in no activities other
than in connection with the financing of accounts receivable of Parent and its
Subsidiaries, 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 which is
23
designated by the Board of Directors of the Issuer (as provided below) as a
Receivables Subsidiary and:
(1) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by Parent or any
other Subsidiary of Parent (excluding guarantees of obligations (other
than the principal of and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (ii) is recourse to or obligates Parent or
any other Subsidiary of Parent in any way other than pursuant to Standard
Securitization Undertakings, or (iii) subjects any property or asset of
Parent or any other Subsidiary of Parent, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings;
(2) with which neither Parent nor any other Subsidiary of Parent has
any material contract, agreement, arrangement or understanding other than
on terms which Parent reasonably believes to be no less favorable to
Parent or such Subsidiary than those that might be obtained at the time
from Persons that are not Affiliates of Parent; and
(3) to which neither Parent not any other Subsidiary of Parent has
any obligation to maintain or preserve such entity's financial condition
or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Issuer shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Issuer giving effect to such
designation and an Officers' Certificate certifying that such designation
complies with the foregoing conditions.
"Receivables Transaction" means any transaction or series of transactions
entered into by Parent or any of its Restricted Subsidiaries pursuant to which
any Person issues interests, the proceeds of which are used to finance a
discrete pool (which may be fixed or revolving) of receivables, leases or other
financial assets (including, without limitation, financing contracts), or a
discrete portfolio of real property or equipment (in each case whether now
existing or arising in the future), and which may include a grant of a security
interest in any such receivables, leases, other financial assets, real property
or equipment (whether now existing or arising in the future) of Parent or any of
its Restricted Subsidiaries, and any assets related thereto, including, all
collateral securing such receivables, leases, other financial assets, real
property or equipment, all contracts and all guarantees or other obligations in
respect thereof, proceeds thereof and other assets that are customarily
transferred, or in respect of which security interests are customarily granted,
in connection with asset securitization transactions involving receivables,
leases, other financial assets, real property or equipment.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Temporary Regulation S Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note
substantially in the form of Exhibit A hereto bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf of and registered
in the name of the Depositary or its nominee,
24
issued in a denomination equal to the outstanding principal amount of the
Temporary Regulation S Global Note upon expiration of the Restricted Period.
"Related Party" means:
(1) any immediate family member of the Principal;
(2) in the event of the death or permanent disability of the
Principal, any heir or devisee of the Principal, or any executor or
similar legal representative of the Principal pending final disposition of
the Principal's Equity Interests in Parent; and
(3) any trust, corporation, partnership, limited liability company
or other entity, the beneficiaries, stockholders, partners, members,
owners or Persons beneficially holding (directly or through one or more
Subsidiaries) a 51% or more controlling interest of which consist of the
Principal or any one or more such other Persons referred to in clause (2).
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Services and its successors and
assigns.
"SEC" means the Securities and Exchange Commission.
25
"Second Lien Agent" means U.S. Bank National Association, in its capacity
as Second Lien Agent under the Collateral Sharing Agreement, together with its
successors in such capacity.
"Second Priority Indentures" means, collectively, this Indenture and the
Floating Rate Indenture.
"Second Priority Liens" means the Liens securing the Obligations in
respect of the Notes, the Note Guarantees and the Indenture.
"Second Priority Notes" means, collectively, the Notes and the Floating
Rate Notes.
"Secured Bank Indebtedness" means any Indebtedness under the Credit
Facilities that is secured by a Permitted Lien incurred or deemed incurred
pursuant to clause (1) of the definition of "Permitted Liens".
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means the security agreements, pledge agreements,
collateral assignments and related agreements, as amended, supplemented,
restated, renewed, refunded, replaced, restructured, repaid, refinanced or
otherwise modified from time to time, creating the security interests in the
Collateral as contemplated by this Indenture.
"Shareholder Loan" means that certain $560.0 million loan made by the
Company on the Issue Date to (i) ▇▇▇▇▇ ▇▇▇▇▇, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇, (iii) ▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, as trustees of the ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust
dated 12/11/87, (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as trustee of the ▇▇▇▇ ▇▇▇▇▇ Trust dated
4/27/07, (v) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as trustee of the ▇▇▇▇▇▇ ▇▇▇▇▇ Trust dated
4/27/07, (vi) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as trustee of ▇▇▇▇▇ ▇▇▇▇▇ Trust dated 4/27/07,
(vii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as trustee of the ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Trust dated
4/27/07, (viii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as trustee of the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Trust dated
4/27/07 and (ix) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, as trustee of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust
dated 4/27/07.
"Shareholder Loan Agreement" means the credit agreement, dated the Merger
Date, with respect to the Shareholder Loan.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the Issue
Date.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by Parent or any of its Restricted
Subsidiaries that are reasonably customary (as determined in good faith by
Parent) in an accounts receivable transaction.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the final payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the Issue Date or, if such Indebtedness is incurred
after the Issue Date, in the original documentation governing such
26
Indebtedness, and will not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) 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 and after
giving effect to any voting agreement or stockholders' agreement that
effectively transfers voting power) to vote in the election of directors,
managers or trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) 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 that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"Subsidiary Guarantors" means each of:
(1) the Subsidiaries of Parent (other than the Issuer) that execute
a supplemental indenture on the Merger Date; and
(2) any other Subsidiary of Parent that thereafter guarantees the
Notes pursuant to the provisions of this Indenture,
and their respective successors and assigns, in each case, until the Note
Guarantee of such Person has been released in accordance with the provisions of
this Indenture.
"Temporary Regulation S Global Note" means a temporary global Note
substantially in the form of Exhibit A hereto bearing the Global Note Legend,
the Private Placement Legend and the legend specified in Section 2.06(f)(3) and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation S.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
thereunder, as may be amended from time to time.
"Trustee" means the party named as such in the preamble to this Indenture
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
"Unrestricted Global Note" means a Global Note that does not bear and is
not required to bear the Private Placement Legend.
"Unrestricted Definitive Note" means a Definitive Note that does not bear
and is not required to bear the Private Placement Legend.
27
"Unrestricted Subsidiary" means any Subsidiary of Parent (other than
this Issuer) that is designated by the Board of Directors of the Issuer as an
Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but
only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11, is not party to any
agreement, contract, arrangement or understanding with Parent, the Issuer
or any Restricted Subsidiary of Parent unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
Parent, the Issuer or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Issuer;
(3) is a Person with respect to which none of Parent, the Issuer or
any of Parent's Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of Parent, the Issuer or any of
Parent's Restricted Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any specified Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) 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 of the Indebtedness, 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
(2) the then outstanding principal amount of such Indebtedness.
SECTION 1.02 Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction".............................................. 4.11
"Asset Sale Offer" .................................................. 3.09
"Authentication Order"............................................... 2.02
"Change of Control Offer"............................................ 4.15
28
"Change of Control Payment".......................................... 4.15
"Change of Control Payment Date"..................................... 4.15
"Covenant Defeasance"................................................ 8.03
"Designated Asset Sale" ............................................. 4.10
"Designated Asset Sale Offer" ....................................... 3.09
"Disregarded Subsidiaries"........................................... 4.07
"DTC"................................................................ 2.03
"Event of Default"................................................... 6.01
"Excess Designated Proceeds"......................................... 4.10
"Excess Proceeds".................................................... 4.10
"incur".............................................................. 4.09
"Legal Defeasance"................................................... 8.02
"Offer Amount"....................................................... 3.09
"Offer Period"....................................................... 3.09
"Paying Agent"....................................................... 2.03
"Permitted Debt"..................................................... 4.09
"Payment Default".................................................... 6.01
"Purchase Date"...................................................... 3.09
"Registrar".......................................................... 2.03
"Restricted Payments"................................................ 4.07
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Issuer, Parent
and the Subsidiary Guarantors, respectively, and any successor obligor upon the
Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04 Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
29
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will
be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes shall be in denominations of $2,000 and integral
multiples of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and Parent, the
Issuer, the Subsidiary Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of any Note
conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Notes issued in definitive form will be substantially
in the form of Exhibit A attached hereto (but without the Global Note
Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note will represent such of
the outstanding Notes as will be specified therein and each shall provide
that it represents the aggregate principal amount of outstanding Notes
from time to time endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
30
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Temporary
Regulation S Global Note, which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee, at its New
York office, as custodian for the Depositary, and registered in the name
of the Depositary or the nominee of the Depositary for the accounts of the
designated agents holding on behalf of Euroclear or Clearstream, duly
executed by the Issuer and authenticated by the Trustee as hereinafter
provided. Following the termination of the Restricted Period, beneficial
interests in the Temporary Regulation S Global Note shall be exchanged for
beneficial interests in the Regulation S Permanent Global Notes pursuant
to the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Notes, the Trustee shall cancel the
Temporary Regulation S Global Note. The aggregate principal amount of the
Temporary Regulation S Global Note and the Regulation S Permanent Global
Notes may from time to time be increased or decreased by adjustments
endorsed thereon as specified in Section 2.01(b) in connection with
transfers of interests as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream Banking" and "Customer Handbook" of Clearstream
will be applicable to transfers of beneficial interests the Regulation S
Global Note that are held by Participants through Euroclear or Clearsteam.
SECTION 2.02 Execution and Authentication. At least one Officer must sign
the Notes for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuer signed by
two Officers (an "Authentication Order"), authenticate Notes for original issue
up to the aggregate principal amount stated on the face of the Notes. Each such
Authentication Order shall specify the number, principal amount and registered
Holder of each of the Notes to be authenticated, whether the Notes are to be
Initial Notes or Additional Notes and whether the Notes are to be issued as
Definitive Notes or Global Notes delivery instructions and such other
information as The Trustee shall reasonably request.
The Trustee may appoint an authenticating agent acceptable to the Issuer
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
31
SECTION 2.03 Registrar and Paying Agent. The Issuer will maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange ("Registrar") and an office or agency where Notes may be presented
for payment ("Paying Agent"). The Registrar will keep a register of the Notes
and of their transfer and exchange. The Issuer may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Issuer may change any Paying Agent or Registrar without notice
to any Holder. The Issuer will notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Issuer fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. Parent, the Issuer or any of their respective Subsidiaries
may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
SECTION 2.04 Paying Agent to Hold Money in Trust. The Issuer will require
each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal, premium, if any, or
interest on the Notes, and will notify the Trustee of any default by the Issuer
in making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Issuer at
any time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than Parent, the
Issuer or any of their respective Subsidiaries) will have no further liability
for the money. If Parent, the Issuer or any or their respective Subsidiaries
acts as Paying Agent, it will segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Issuer, the Trustee
will serve as Paying Agent for the Notes.
SECTION 2.05 Holder Lists. The Trustee will preserve in as current a form
as is reasonably practicable the most recent list available to it of the names
and addresses of all Holders and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the Issuer will furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Issuer shall otherwise comply with TIA Section 312(a).
SECTION 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such
32
successor Depositary. All Global Notes will be exchanged by the Issuer for
Definitive Notes if:
(1) the Issuer delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered
under the Exchange Act and, in either case, a successor Depositary
is not appointed by the Issuer within 120 days after the date of
such notice from the Depositary; or
(2) the Issuer in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee, provided that in no event shall the Temporary Regulation S
Global Note be exchanged by the Issuer for Definitive Notes prior to
(x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act.
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Note. A Global Note may not be exchanged
for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c), (d) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global
Notes will be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions
on transfer comparable to those set forth herein to the extent required by
the Securities Act. Transfers of beneficial interests in the Global Notes
also will require compliance with either subparagraph (1) or (2) below, as
applicable, as well as one or more of the other following subparagraphs,
as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the
Temporary Regulation S Global Note may not be made to a U.S. Person
or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note. No
written
33
orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section
2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1)
above, the transferor of such beneficial interest must deliver to
the Registrar either:
(A) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or
exchanged; and
(ii) instructions given in accordance with the
Applicable Procedures containing information regarding
the Participant account to be credited with such
increase; or
(B) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to
effect the transfer or exchange referred to in (1)
above, provided that in no event shall Definitive Notes
be issued upon the transfer or exchange of beneficial
interests in the Temporary Regulation S Global Note
prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act.
Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of
a beneficial interest in another
34
Restricted Global Note if the transfer complies with the
requirements of Section 2.06(b)(2) above and the Registrar receives
the following:
(A) if the transferee will take delivery in the form of
a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of
a beneficial interest in the Temporary Regulation S Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of
a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with
the requirements of Section 2.06(b)(2) above and:
(A) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such holder
in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (A), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement
35
Legend are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (A) above at a
time when an Unrestricted Global Note has not yet been issued, the Issuer shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (A) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest
in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof,
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to
a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable; or
36
(F) if such beneficial interest is being transferred to
Parent, the Issuer or any of their respective Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Issuer shall execute and the Trustee shall
authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount.
Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(1) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Temporary Regulation S Global Note
to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C)
hereof, a beneficial interest in the Temporary Regulation S Global
Note may not be exchanged for a Definitive Note or transferred to a
Person who takes delivery thereof in the form of a Definitive Note
prior to (x) the expiration of the Restricted Period and (y) the
receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in
a Restricted Global Note may exchange such beneficial interest for
an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if the Registrar receives the
following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note,
a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b)
thereof, or
(ii) if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note,
a certificate from such holder in the
37
form of Exhibit B hereto, including the certifications
in item (4) thereof,
and, in each such case set forth in this subparagraph (A), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon satisfaction of the conditions
set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the
Issuer will execute and the Trustee will authenticate and deliver to
the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(3) will
be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest requests through instructions to the Registrar from or
through the Depositary and the Participant or Indirect Participant.
The Trustee will deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section
2.06(c)(3) will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt
by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
38
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable; or
(F) if such Restricted Definitive Note is being
transferred to Parent, the Issuer or any of their respective
Subsidiaries, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(b) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the
case of clause (B) above, the 144A Global Note, in the case of
clause (C) above, the Regulation S Global Note, and in all other
cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note only if:
(A) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
39
and, in each such case set forth in this subparagraph (A), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel
the Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of
a request for such an exchange or transfer, the Trustee will cancel
the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraph (2)(A)
above at a time when an Unrestricted Global Note has not yet been
issued, the Issuer will issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes
so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar will register
the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender
to the Registrar the Definitive Notes duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder must provide any additional
certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
40
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (A), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder
thereof.
(f) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this
Indenture.
41
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) , (IV) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (IN THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (V)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(2), (c)(3), (d)(2), (d)(3), (e)(2) or (e)(3) of this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) will not bear the Private Placement
Legend.
42
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), 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 MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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."
(3) Temporary Regulation S Global Note Legend. The Temporary
Regulation S Global Note will bear a legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS TEMPORARY REGULATION S GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTE, ARE
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(g) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note
will be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
43
beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest
in another Global Note or for Definitive Notes, the principal amount of
Notes represented by such Global Note will be reduced accordingly and an
endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and
if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased
accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Issuer will execute and the Trustee will authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 or at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for
any registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10,
4.15 and 9.05 hereof).
(3) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture,
as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(4) Neither the Registrar nor the Issuer will be required:
(A) to issue, to register the transfer of or to exchange
any Notes during a period beginning at the opening of business
15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close
of business on the day of selection;
(B) to register the transfer of or to exchange any Note
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment
date.
(5) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuer may deem
and treat the Person in
44
whose name any Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any
Agent or the Issuer shall be affected by notice to the contrary.
(6) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(7) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section
2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
SECTION 2.07 Replacement Notes. If any mutilated Note is surrendered to
the Trustee or the Issuer and the Trustee receives evidence to its satisfaction
of the destruction, loss or theft of any Note, the Issuer will issue and the
Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuer to protect the Issuer,
the Trustee, any Agent and any authenticating agent from any loss, liability or
expense that any of them may suffer if a Note is replaced and subsequently
presented or claimed for payment. The Issuer may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Issuer and will
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.08 Outstanding Notes. The Notes outstanding at any time are all
the Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 or Sections 2.09, 8.02 or 8.03 as not
outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease
to be outstanding because Parent, the Issuer or an Affiliate of Parent or the
Issuer holds the Note; however, Notes held by Parent, the Issuer or a Subsidiary
of Parent or the Issuer shall not be deemed to be outstanding for purposes of
Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than Parent, the Issuer, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
SECTION 2.09 Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by Parent, the Issuer or any Subsidiary Guarantor, or by
any Person directly or indirectly controlling
45
or controlled by or under direct or indirect common control with Parent, the
Issuer or any Subsidiary Guarantor, will be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
will be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee actually knows are so owned will
be so disregarded.
SECTION 2.10 Temporary Notes. Until certificates representing Notes are
ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an
Authentication Order, will authenticate temporary Notes. Temporary Notes will be
substantially in the form of certificated Notes but may have variations that the
Issuer considers appropriate for temporary Notes and as may be reasonably
acceptable to the Trustee. Without unreasonable delay, the Issuer will prepare
and the Trustee will authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes will be entitled to all of the benefits of this
Indenture.
SECTION 2.11 Cancellation. The Issuer at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent will forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
will dispose of such canceled Notes (subject to the record retention requirement
of the Exchange Act) in its customary manner. Certification of the destruction
of all canceled Notes will be delivered to the Issuer. The Issuer may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12 Defaulted Interest. If the Issuer defaults in a payment of
interest on the Notes, it will pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Issuer will notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Issuer will fix or cause
to be fixed each such special record date and payment date, provided that no
such special record date may be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Issuer (or, upon the written request of the Issuer, the Trustee in the
name and at the expense of the Issuer) will mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 Notices to Trustee. If the Issuer elects to redeem Notes
pursuant to the optional redemption provisions of Section 3.07 hereof, it must
furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers' Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption
shall occur,
(2) the redemption date;
(3) the principal amount of Notes to be redeemed;
46
(4) the redemption price; and
(5) applicable CUSIP numbers.
SECTION 3.02 Selection of Notes to Be Redeemed or Purchased. If less than
all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee will select Notes for redemption or purchase as follows:
(1) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities
exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee deems fair
and appropriate, subject to the redemption procedures of the Depositary.
In the event of partial redemption or purchase the particular Notes to be
redeemed or purchased will be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption or purchase date by
the Trustee from the outstanding Notes not previously called for redemption or
purchase.
The Trustee will promptly notify the Issuer in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of $1,000 or
whole multiples of $1,000 in excess thereof. No Notes of $1,000 or less shall be
redeemed in part. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Notes called for redemption or purchase also apply
to portions of Notes called for redemption or purchase.
SECTION 3.03 Notice of Redemption. Subject to the provisions of Section
3.09 hereof, at least 30 days but not more than 60 days before a redemption
date, the Issuer will mail or cause to be mailed, by first class mail, a notice
of redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior to
a redemption date if the notice is issued in connection with a defeasance of the
Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8
or 12 of this Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
47
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Issuer defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Issuer's request, the Trustee will give the notice of redemption in
the Issuer's name and at its expense; provided, however, that the Issuer has
delivered to the Trustee, at least 40 days (unless a shorter time shall be
acceptable to the Trustee) prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and providing a form of
notice setting forth the information to be stated in such notice as provided in
the preceding paragraph.
SECTION 3.04 Effect of Notice of Redemption. Once notice of redemption is
mailed in accordance with Section 3.03 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the redemption
price. Any delayed notice of redemption that is not received at least 30 days
prior to the redemption date shall result in such redemption date becoming
effective 30 days following the date of completed notice. A notice of redemption
may not be conditional.
SECTION 3.05 Deposit of Redemption or Purchase Price. One Business Day
prior to the redemption or purchase date, the Issuer will deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued interest on all Notes to be redeemed or purchased
on that date. The Trustee or the Paying Agent will promptly return to the Issuer
any money deposited with the Trustee or the Paying Agent by the Issuer in excess
of the amounts necessary to pay the redemption or purchase price of, and accrued
interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on
and after the redemption or purchase date, interest will cease to accrue on the
Notes or the portions of Notes called for redemption or purchase. If a Note is
redeemed or purchased on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Issuer to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption or purchase date until such principal is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
SECTION 3.06 Notes Redeemed or Purchased in Part. Upon surrender of a Note
that is redeemed or purchased in part, the Issuer will issue and, upon receipt
of an Authentication Order,
48
the Trustee will authenticate for the Holder at the expense of the Issuer a new
Note equal in principal amount to the unredeemed or unpurchased portion of the
Note surrendered.
SECTION 3.07 Optional Redemption. (a) At any time prior to May 15, 2010,
the Issuer may redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture (including any Additional Notes issued after the
Issue Date) at a redemption price equal to 112.50% of the principal amount
thereof, plus accrued and unpaid interest to, but not including, the redemption
date, with the net cash proceeds of one or more Equity Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Notes issued
under this Indenture (including any Additional Notes but excluding Notes
held by Parent or its Subsidiaries) remains outstanding immediately after
the occurrence of such redemption; and
(2) the redemption occurs within 120 days of the date of the closing
of such Equity Offering.
Except pursuant to the preceding paragraph, the Notes will not be
redeemable at the Issuer's option prior to May 15, 2012. The Issuer is not,
however, prohibited under this Indenture from acquiring the Notes by means other
than a redemption, whether pursuant to a tender offer, open market purchase or
otherwise so long as the acquisition does not violate the terms of this
Indenture.
On or after May 15, 2012, the Issuer may redeem all or a part of the Notes
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest on the Notes to be redeemed, to,
but not including, the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below, subject to
the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
---- ----------
2012............................................................. 106.250%
2013............................................................. 104.167%
2014............................................................. 102.083%
2015 and thereafter.............................................. 100.000%
All redemptions of the Notes will be made upon not less than 30 days' nor
more than 60 days' prior notice mailed by first class mail to each Holder's
registered address as provided in Section 3.03. Unless the Issuer defaults in
the payment of the redemption price, interest will cease to accrue on the Notes
or portions thereof called for redemption on the applicable redemption date.
(b) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 Mandatory Redemption. The Issuer is not required to make
mandatory redemption or sinking fund payments with respect to the Notes.
49
SECTION 3.09 Offer to Purchase by Application of Excess Designated
Proceeds or Excess Proceeds. In the event that either (x) pursuant to clause (2)
of the second paragraph of Section 4.10 hereof, the Issuer is required to
commence an offer to all Holders to purchase Notes and, if required by Section
4.10, Pari Passu Indebtedness (a "Designated Asset Sale Offer"), or (y) pursuant
to the fourth paragraph of Section 4.10 hereof, the Issuer is required to
commence an offer to all Holders to purchase Notes and, if required by Section
4.10, Pari Passu Indebtedness (an "Asset Sale Offer"), then, in either such
case, the Issuer will follow the procedures specified below.
The offer price in any Designated Asset Sale Offer or Asset Sale Offer
will be equal to 100% of the principal amount of the Notes and such Pari Passu
Indebtedness plus accrued and unpaid interest on the Notes and such Pari Passu
Indebtedness to, but excluding, the date of purchase and will be payable in
cash. If any Excess Designated Proceeds remain after consummation of a
Designated Asset Sale Offer or any Excess Proceeds remain after consummation of
an Asset Sale Offer, the Issuer may use those remaining Excess Designated
Proceeds or Excess Proceeds, as applicable, for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
Pari Passu Indebtedness tendered into such Designated Asset Sale Offer or such
Asset Sale Offer exceeds the amount of Excess Designated Proceeds or Excess
Proceeds, as applicable, the Notes and such Pari Passu Indebtedness to be
purchased shall be purchased on a pro rata basis based on the principal amount
of Notes and such Pari Passu Indebtedness tendered. In such event, the Issuer
shall furnish to the Trustee an Officers' Certificate setting forth the
principal amount at such time of any such Pari Passu Indebtedness and thereupon
the Trustee shall select the Notes to be purchased as provided in Section 3.02.
Upon completion of each Designated Asset Sale Offer, the amount of Excess
Designated Proceeds will be reset at zero, and upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.
The Issuer will comply with the requirements of Rule 14e-l under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to a Designated Asset Sale Offer or an Asset Sale
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of Sections 3.09 or 4.10 of this Indenture, the
Issuer will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under this Section 3.09 or
Section 4.10 by virtue of such compliance.
Each Designated Asset Sale Offer and each Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and
not more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three Business
Days after the termination of the Offer Period (the "Purchase Date"), the Issuer
will apply all Excess Designated Proceeds or Excess Proceeds, as applicable (the
"Offer Amount"), to the purchase of Notes and such tendered Pari Passu
Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer
Amount has been tendered, all Notes and Pari Passu Indebtedness tendered in
response to the Designated Asset Sale Offer or the Asset Sale Offer, as
applicable. Payment for any Notes so purchased will be made in the same manner
as interest payments are made.
50
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, will
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Notes pursuant to the Designated Asset Sale Offer or the
Asset Sale Offer, as applicable.
Upon the commencement of a Designated Asset Sale Offer or an Asset Sale
Offer, the Issuer will send, by first class mail, a notice to the Trustee and
each of the Holders. The notice will contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Designated
Asset Sale Offer or the Asset Sale Offer, as applicable. The notice, which will
govern the terms of the Designated Asset Sale Offer or the Asset Sale Offer, as
applicable, will state:
(1) that the Designated Asset Sale Offer or the Asset Sale Offer, as
applicable, is being made pursuant to this Section 3.09 and Section 4.10
hereof and the length of time the Designated Asset Sale Offer or the Asset
Sale Offer, as applicable, will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue
to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any
Note accepted for payment pursuant to the Designated Asset Sale Offer or
the Asset Sale Offer, as applicable, will cease to accrue interest after
the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a
Designated Asset Sale Offer or an Asset Sale Offer, as applicable, may
elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any
Designated Asset Sale Offer or any Asset Sale Offer, as applicable, will
be required to surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" attached to the Notes completed, or transfer by
book-entry transfer, to the Issuer, a Depositary, if appointed by the
Issuer, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the
Issuer, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(8) that, if the aggregate principal amount of Notes and Pari Passu
Indebtedness surrendered by holders thereof exceeds the Offer Amount, the
Issuer will select the Notes and Pari Passu Indebtedness to be purchased
on a pro rata basis based on the principal amount of Notes and such Pari
Passu Indebtedness surrendered (with such
51
adjustments as may be deemed appropriate by the Issuer so that only Notes
in denominations of $1,000, or integral multiples of $1,000 in excess
thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Issuer will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Designated Asset
Sale Offer or the Asset Sale Offer, as applicable, or if less than the Offer
Amount has been tendered, all Notes tendered, and will deliver or cause to be
delivered to the Trustee the Notes properly accepted together with an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Issuer in accordance with the terms of this Section 3.09. The
Issuer, the Depositary or the Paying Agent, as the case may be, will promptly
(but in any case not later than seven days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Issuer for purchase, and the
Issuer will promptly issue a new Note, and the Trustee, upon written request
from the Issuer will authenticate and mail or deliver (or cause to be
transferred by book entry) such new Note to such Holder, in a principal amount
equal to any unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Issuer to the Holder
thereof. The Issuer will publicly announce the results of the Designated Asset
Sale Offer or the Asset Sale Offer, as applicable, on or as soon as reasonably
practicable after the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Notes. The Issuer will pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and interest will be
considered paid on the date due if the Paying Agent, if other than Parent, the
Issuer or any Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due
date money deposited by the Issuer in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuer will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.02 Maintenance of Office or Agency. The Issuer will maintain in
the Borough of Manhattan, the City of New York, an office or agency (which may
be an office of the Trustee or an affiliate or an agent of the Trustee,
Registrar or co-registrar) where Notes may
52
be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served. The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer fails to maintain any such required office or agency or fails to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Issuer may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission will in any manner relieve the Issuer of
its obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. The Issuer will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Issuer in accordance with Section 2.03 hereof.
SECTION 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, Parent and the Issuer will furnish
to the Holders or cause the Trustee to furnish to the Holders, within the
time periods specified in the SEC's rules and regulations applicable to a
registrant that is not an accelerated filer or a large accelerated filer
(provided, that, with respect to (i) the first quarterly report on Form
10-Q that would be required to be delivered after the Merger Date, such
time period for delivery shall be extended to July 1, 2007 and (ii) the
quarterly report on Form 10-Q for the second quarter of 2007, such time
period for delivery will be extended to 60 days following the end of such
fiscal quarter; provided, further, that the Issuer will be obligated to
deliver, within 45 days following the end of such fiscal quarter, the
financial information with respect to such fiscal quarter of the same
type, and in the same presentation, as was furnished as Exhibit 99.1 to
the Company's Form 8-K filed with the SEC on April 19, 2007):
(1) all quarterly and annual reports that would be required to
be filed with the SEC on Forms 10-Q and 10-K if Parent and the
Issuer were required to file such reports; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if Parent and the Issuer were required to
file such reports; provided, however, that no such current report
will be required to be furnished if Parent determines in its good
faith judgment that such event is not material to the Holders or the
business, assets, operations, financial positions or prospects of
Parent, the Issuer and Parent's Restricted Subsidiaries, taken as a
whole.
All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such
reports and each annual report on Form 10-K
53
will include a report on Parent's consolidated financial statements by
Parent's certified independent accountants; provided, however, that:
(i) ▇▇▇▇▇▇▇▇-▇▇▇▇▇. No certifications or attestations
concerning internal controls that would otherwise be required
pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 will be required;
(ii) Financial Statements of Acquired Entities. The financial
statements required of acquired businesses will be limited to the
financial statements (in whatever form) that Parent receives in
connection with the acquisition, and whether or not audited;
(iii) Financial Statements of Unconsolidated Entities. No
financial statements of unconsolidated entities will be required;
(iv) Supplemental Schedules. The schedules identified in
Section 5-04 of Regulation S-X under the Securities Act will not be
required; and
(v) Non-GAAP Financial Measures. Compliance with the
requirements of Item 10(e) of Regulation S-K will not be required.
If Parent or the Issuer has designated any of their respective
Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual
financial information required by the preceding paragraphs will include a
reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in Management's Discussion and
Analysis of Financial Condition and Results of Operations, of the
financial condition and results of operations of Parent, the Issuer and
Parent's Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of Parent. In
addition, if any of the Subsidiaries of Parent or the Issuer are
guaranteeing the Notes, in lieu of financial statements for any such
Subsidiary Guarantors or the consolidating footnotes as required by Rule
3-10 of Regulation S-X, Parent may include a reasonably detailed
presentation, either on the face of the financial statements or in the
footnotes thereto, or in Management's Discussion and Analysis of Financial
Condition and Results of Operations, of the financial condition and
results of operations on a stand-alone basis of Parent, the Issuer, the
Subsidiary Guarantors and any Subsidiaries that are not Subsidiary
Guarantors.
Parent will post the reports specified in the preceding paragraph on
a website no later than the date Parent is required to provide those
reports to the Trustee and the Holders and maintain such posting so long
as any Notes remain outstanding; provided, however, that such website may
be password protected so long as Parent makes reasonable efforts to notify
the Trustee and Holders of postings to the website (including through the
information dissemination procedures of the depositary for the Notes) and
to provide the Trustee and the Holders with access to such website.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from
54
information contained therein, including Issuer's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer's Certificates). The Trustee is under no duty to
examine such reports, information or documents to ensure compliance with
the provisions of this Indenture or to ascertain the correctness or
otherwise of information or the statements contained therein. The Trustee
is entitled to assume such compliance and correctness unless a Responsible
Officer of the Trustee is informed otherwise.
(b) In addition, Parent, the Issuer and the Subsidiary Guarantors
agree that, for so long as any Notes remain outstanding, Parent, the
Issuer and the Subsidiary Guarantors will furnish to the Holders of Notes
and to securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
(c) Except with respect to receipt of Note payments when due and any
Default or Event of Default information contained in the Officer's
Certificate delivered to it pursuant to this Section 4.03, the Trustee
shall have no duty to review, ascertain or confirm the Issuer's compliance
with, or the breach of any representation, warranty of covenant made in
this Indenture.
SECTION 4.04 Compliance Certificate.
(a) Parent, the Issuer and each Subsidiary Guarantor (to the extent
that such Subsidiary Guarantor is so required under the TIA) shall deliver
to the Trustee, within 90 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the activities of Parent,
the Issuer and their respective Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a
view to determining whether Parent, the Issuer and each Subsidiary
Guarantor has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge Parent, the
Issuer and each Subsidiary Guarantor has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not
in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Issuer is taking or
proposes to take with respect thereto).
(b) So long as any of the Notes are outstanding, the Issuer will
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default that has not been cured, an Officers'
Certificate specifying such Default or Event of Default and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 4.05 Taxes. Parent and the Issuer will pay, and will cause each of
their respective Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
55
SECTION 4.06 Stay, Extension and Usury Laws. Parent, the Issuer and each
of the Subsidiary Guarantors covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and Parent, the Issuer and each
of the Subsidiary Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07 Restricted Payments.
(a) Parent and the Issuer will not, and will not permit any of
Parent's Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of Parent's, the Issuer's or any of Parent's
Restricted Subsidiaries' Equity Interests or to the direct or
indirect holders of Parent's, the Issuer's or any of Parent's
Restricted Subsidiaries' Equity Interests in their capacity as such
(other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of Parent and other than dividends
or distributions payable to Parent, the Issuer or any of Parent's
Restricted Subsidiaries);
(2) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of Parent, the Issuer or any of Parent's
Restricted Subsidiaries (other than any Equity Interests owned by
Parent, the Issuer or any of Parent's Restricted Subsidiaries);
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any
Indebtedness of Parent, the Issuer or any Subsidiary Guarantor that
is contractually subordinated to the Notes or to any Note Guarantee
(excluding any intercompany Indebtedness between or among Parent,
the Issuer and any of Parent's Restricted Subsidiaries), except a
payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Investment;
(all such payments and other actions set forth in these clauses (1)
through (4) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(A) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted
Payment;
(B) the Issuer would, after giving pro forma effect to such
Restricted Payment as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of
56
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09(a) hereof; and
(C) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by Parent, the Issuer
and Parent's Restricted Subsidiaries since the Issue Date (excluding
Restricted Payments permitted by clauses (2), (3), (5), (6), (7),
(9) and (12), of the next succeeding paragraph), is less than the
sum, without duplication, of:
(i) 50% of the Consolidated Net Income of Parent during
the period (taken as one accounting period) from the Merger
Date to the end of Parent's most recently ended fiscal quarter
for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such
deficit) provided, that, with respect to the period commencing
on the Merger Date until the last day of the fiscal quarter in
which the Merger Date shall occur, the Consolidated Net Income
of Parent shall be deemed to equal the product of (x) the
Consolidated Net Income of Parent for the entire fiscal
quarter in which the Merger Date shall occur, times (y) a
fraction, (A) the numerator of which equals the number days in
the period commencing on, but excluding, the Merger Date and
ending on, and including, the last day of such fiscal quarter,
and (B) the denominator of which equals the total number of
days in such fiscal quarter; plus
(ii) 100% of the aggregate net cash proceeds received by
Parent subsequent to the Merger Date (x) as a contribution to
its common equity capital or (y) from the issue or sale of
Equity Interests of Parent (other than Disqualified Stock or
any other Equity Interest issued to an employee stock
ownership plan or to a trust established by Parent or any of
its Subsidiaries for the benefit of their employees) or from
the issue or sale of convertible or exchangeable Disqualified
Stock or convertible or exchangeable debt securities that have
been converted into or exchanged for such Equity Interests
(other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of Parent or issued to an
employee stock ownership plan or to a trust established by
Parent or any of its Subsidiaries for the benefit of their
employees; plus
(iii) to the extent that any Restricted Investment that
was made subsequent to the Merger Date is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (i) the
cash received as return of capital with respect to such
Restricted Investment (less the cost of disposition if any)
and (ii) the amount of such Restricted Investment as of
immediately prior to such sale as defined pursuant to the last
sentence of the definition of "Investment;" plus
(iv) to the extent that any Unrestricted Subsidiary of
Parent designated as such after the Merger Date is
redesignated as a Restricted
57
Subsidiary after the Merger Date, 100% of the Fair Market
Value of Parent's Investment in such Subsidiary as of the date
of such redesignation.
(b) So long as (solely in the case of clauses (4), (8), (10) and
(12)) no Default has occurred and is continuing or would be caused
thereby, the preceding provisions will not prohibit:
(1) the payment of any dividend or distribution or the
consummation of any irrevocable redemption within 60 days after the
date of declaration of the dividend or distribution or giving of the
redemption notice, as the case may be, if, at the date of
declaration or notice, the dividend, distribution or redemption
payment would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or
out of the net cash proceeds received by Parent of the substantially
concurrent sale (other than to a Subsidiary of Parent) of, Equity
Interests of Parent (other than Disqualified Stock or any other
Equity Interest issued to an employee stock ownership plan or to a
trust established by Parent or any of its Subsidiaries for the
benefit of their employees) or from the substantially concurrent
cash capital contribution received by Parent from its stockholders;
provided that the amount of any such net cash proceeds that are
utilized for any such Restricted Payment will be excluded from
Section 4.07(a)(C)(ii);
(3) the repurchase, redemption, defeasance or other
acquisition or retirement for value of Indebtedness of Parent, the
Issuer or any Subsidiary Guarantor that is contractually
subordinated to the Notes or to any Note Guarantee with the net cash
proceeds from a substantially concurrent incurrence of, or in
exchange for, Permitted Refinancing Indebtedness that is
contractually subordinated to the Notes and the Note Guarantee as to
the same extent as the Indebtedness being refinanced;
(4) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of Parent, the Issuer
or any Restricted Subsidiary of Parent held by any current or former
officer, director, consultant or employee of Parent, the Issuer or
any Restricted Subsidiary of Parent pursuant to any equity
subscription agreement, stock option agreement, shareholders' or
members' agreement or similar agreement, plan or arrangement;
provided that (x) the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests may not exceed $5.0
million in any calendar year (provided, however, that Parent, the
Issuer or Parent's Restricted Subsidiaries may carry over and make
in the immediately subsequent calendar year, in addition to the
amounts permitted for any such calendar year, the amount of such
repurchases, redemptions or other acquisitions or retirements for
value permitted to have been made, but not made, in the immediately
preceding calendar year), and (y) the aggregate price paid for all
such repurchased, redeemed, acquired or retired
58
Equity Interests on or after the Issue Date may not exceed $40
million in the aggregate;
(5) the repurchase of Equity Interests deemed to occur upon
the exercise of stock options to the extent such Equity Interests
represent a portion of the exercise price of those stock options;
(6) any dividend (or, in the case of any partnership or
limited liability company, any similar distribution) by a Restricted
Subsidiary of Parent to the holders of its Equity Interests on a pro
rata basis;
(7) so long as Parent is treated as an S Corporation as
defined under Section 1361(a)(1) of the Code and to the extent its
Subsidiaries (other than any Foreign Subsidiaries) are treated as
Qualified Subchapter S Subsidiaries as defined under Section
1361(b)(3)(b) of the Code or otherwise disregarded as separate from
Parent for U.S. federal income tax purposes ("Disregarded
Subsidiaries"), dividends or other distributions by Parent to the
holders of Parent's Equity Interests in an aggregate amount in any
calendar year equal to 39% of Parent's taxable income in respect of
such calendar year assuming for purposes of this calculation that
(i) Parent is a C corporation, (ii) Parent's only Subsidiaries are
Disregarded Subsidiaries, and (iii) the taxable income of Parent is
reduced by the amounts paid pursuant to clause (10) below;
(8) the declaration and payment of regularly scheduled or
accrued dividends or distributions to holders of any class or series
of Disqualified Stock of Parent, the Issuer or any Restricted
Subsidiary of Parent issued on or after the Issue Date in accordance
with the Fixed Charge Coverage Ratio test set forth in Section
4.09(a);
(9) Restricted Payments to the holders of Equity Interests in
the Company pursuant to the Merger Agreement to the extent described
in the Offering Memorandum;
(10) to the extent that any holder of Parent's Equity
Interests is a obligor under the Shareholder Loan and so long as
there shall exist no default under Section 8.1.7 of the Shareholder
Loan Agreement, dividends or other distributions by Parent to such
holder of Parent's Equity Interests in an amount equal to the actual
cash amount of interest due and payable by such holder of Parent's
Equity Interests under the Shareholder Loan, without regard to any
"gross-up" or similar amounts in respect of taxes, if any, on any
such dividend or distribution, provided that the proceeds of any
such dividend or distribution is immediately applied by such holder
of Parent's Equity Interests to the payment of such interest in
respect to the Shareholder Loan;
(11) the purchase of fractional shares upon conversion of any
securities of Parent or the Issuer into, or the exercise of rights
with respect to, Equity Interests of Parent or the Issuer provided
that the such fractional shares or the
59
right to receive such fractional shares shall have not been created
for the purpose of circumventing the provisions of this Section
4.07; and
(12) other Restricted Payments in an aggregate amount not to
exceed $25 million since the Issue Date.
The amount of all Restricted Payments (other than cash) will be the Fair
Market Value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by Parent, the Issuer or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair
Market Value of any assets or securities that are required to be valued by this
Section 4.07 will be determined by the Board of Directors of the Issuer whose
resolution with respect thereto will be delivered to the Trustee. The Board of
Directors' determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
Fair Market Value exceeds $15 million. For purposes of determining compliance
with this Section 4.07, if a Restricted Payment meets the criteria of more than
one of the exceptions described in clauses (1) through (12) above or is entitled
to be made according to the first paragraph of this Section 4.07, the Issuer
may, in its sole discretion, classify the Restricted Payment in any manner that
complies with this Section 4.07.
SECTION 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries.
(a) Parent and the Issuer will not, and will not permit any of
Parent's Restricted Subsidiaries to, directly or indirectly, create or
permit to exist or become effective any consensual encumbrance or
restriction on the ability of the Issuer or any Restricted Subsidiary of
Parent to:
(1) pay dividends or make any other distributions on its
Capital Stock to Parent, the Issuer or any of Parent's Restricted
Subsidiaries, or with respect to any other interest or participation
in, or measured by, its profits, or pay any Indebtedness owed to
Parent, the Issuer or any of Parent's Restricted Subsidiaries;
(2) make loans or advances to Parent, the Issuer or any of
Parent's Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to
Parent, the Issuer or any of Parent's Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements outstanding on the Merger Date, the Credit
Agreement and Credit Facilities as in effect on the Merger Date and
any amendments, restatements, modifications, supplements, renewals,
refundings, replacements or refinancings of those agreements;
provided that such amendments, restatements, modifications,
supplements, renewals, refundings, replacements or refinancings are
not materially more restrictive, taken as a whole, with respect to
such dividend and other payment restrictions than those contained in
those agreements on the
60
Merger Date (as determined in good faith by the Board of Directors
of Parent or the Issuer);
(2) the Second Priority Indentures, the Second Priority Notes,
the Note Guarantees, the Floating Rate Note Guarantees and the
Security Documents;
(3) applicable law, rule, regulation or order;
(4) any instrument of a Person acquired by Parent, the Issuer
or any of Parent's Restricted Subsidiaries as in effect at the time
of such acquisition (except to the extent such instrument was issued
or such agreement was entered into 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;
(5) customary non-assignment provisions or subletting
restrictions in contracts, leases and licenses entered into in the
ordinary course of business;
(6) purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations that
impose restrictions on the property purchased or leased of the
nature described in Section 4.08(a)(3);
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary of Parent that restricts distributions, loans
or transfers by that Restricted Subsidiary pending closing of the
sale or other disposition;
(8) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken
as a whole, with respect to such encumbrance or restriction set
forth in clauses (1), (2) or (3) of Section 4.08(a) than those
contained in the agreements governing the Indebtedness being
extended, renewed, refunded, refinanced, replaced, defeased or
discharged (as determined in good faith by the Board of Directors of
Parent or the Issuer);
(9) Liens permitted to be incurred under Section 4.12 that
limit the right of the debtor to dispose of the assets securing such
Indebtedness;
(10) provisions limiting the disposition or distribution of
assets or property or transfer of Capital Stock in joint venture
agreements, asset sale agreements, sale-leaseback agreements, stock
sale agreements and other similar agreements entered into (a) in the
ordinary course of business or (b) with the approval of the Issuer's
Board of Directors, which limitation is applicable only to the asset
or property that are the subject of such agreements;
61
(11) restrictions on cash, Cash Equivalents, Marketable
Securities or other deposits or net worth imposed by customers or
lessors under contracts or leases entered into in the ordinary
course of business;
(12) Indebtedness or other customary contractual requirements
of a Receivables Subsidiary incurred in connection with a Qualified
Receivables Transaction; provided that such restrictions apply only
to such Receivables Subsidiary;
(13) Indebtedness or other contractual requirements of a Motor
Vehicle Subsidiary or New Motor Vehicles Subsidiary incurred in
connection with a Motor Vehicle Financing; provided that such
restrictions apply only to such Motor Vehicle Subsidiary or New
Motor Vehicles Subsidiary; and
(14) any encumbrances or restrictions imposed by any
amendments or refinancings of the contracts, instruments or
obligations referred to above in clauses (1) through (13); provided
that such amendments or refinancings are not more restrictive, taken
as a whole, with respect to encumbrances or restrictions set forth
in clauses (1), (2) or (3) of Section 4.08(a) than such encumbrances
and restrictions prior to such amendment or refinancing (as
determined in good faith by the Board of Directors of Parent or the
Issuer).
SECTION 4.09 Incurrence of Indebtedness and Issuance of Preferred Equity.
(a) Parent and the Issuer will not, and will not permit any of
Parent's Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, "incur")
any Indebtedness (including Acquired Debt), and Parent and the Issuer will
not issue any Disqualified Stock and will not permit the Issuer or any of
Parent's Restricted Subsidiaries to issue any Disqualified Stock or any
shares of preferred equity; provided, however, that Parent, the Issuer and
any of Parent's Restricted Subsidiaries may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock and the Issuer and any of
Parent's Restricted Subsidiaries may issue preferred equity, if, on the
date of such incurrence or issuance, the Fixed Charge Coverage Ratio for
Parent's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which
such additional Indebtedness is incurred or such Disqualified Stock or
such preferred equity is issued, as the case may be, would have been at
least (A) 1.75 to 1.00 if such Indebtedness is incurred or such
Disqualified Stock or such preferred equity is issued on or prior to June
30, 2008 or (B) 2.00 to 1.00 if such Indebtedness is incurred or such
Disqualified Stock or such preferred equity is issued after June 30, 2008,
in each case, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or the Disqualified Stock or the preferred
equity had been issued, as the case may be, at the beginning of such
four-quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
62
(1) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of Indebtedness and letters of credit and
bankers' acceptances thereunder under Credit Facilities in an
aggregate principal amount at any one time outstanding under this
clause (1) (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of Parent, the
Issuer and such Restricted Subsidiaries thereunder) not to exceed
$2,170 million less the aggregate amount of all Net Proceeds of
Asset Sales applied by Parent, the Issuer or any of Parent's
Restricted Subsidiaries since the Merger Date to repay any term
Indebtedness under a Credit Facility or to repay any revolving
credit Indebtedness under a Credit Facility and effect a
corresponding commitment reduction thereunder pursuant to Section
4.10;
(2) the incurrence by Parent, the Issuer and the Subsidiary
Guarantors of Indebtedness represented by the Second Priority Notes
(excluding any Additional Notes or any additional Floating Rate
Notes issued after the Issue Date) and the related Note Guarantees
or Floating Rate Note Guarantees;
(3) the incurrence by Parent, the Issuer and Parent's
Restricted Subsidiaries of Indebtedness (other than Indebtedness
described in clause (1) or (2)) outstanding on the Merger Date,
reduced to the extent such amounts shall be been repaid or retired,
the incurrence by Parent, the Issuer and Parent's Restricted
Subsidiaries of Indebtedness to the extent outstanding on the Merger
Date;
(4) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of Indebtedness represented by mortgage
financings or purchase money obligations (but not Capital Lease
Obligations), in each case, incurred for the purpose of financing
all or any part of the purchase price or cost of design,
development, construction, installation or improvement of property
(real or personal), plant or equipment used in the ordinary course
of business of Parent, the Issuer or any of Parent's Restricted
Subsidiaries in an aggregate principal amount which, when taken
together with all other Indebtedness of Parent, the Issuer and
Parent's Restricted Subsidiaries incurred pursuant to this clause
(4) and outstanding on the date of such incurrence, does not exceed
$50 million;
(5) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge any Indebtedness
(other than intercompany Indebtedness) that was permitted by this
Indenture to be incurred under Section 4.09(a) or clause (2), (3),
(5), (12) or (18) of this Section 4.09(b);
(6) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of intercompany Indebtedness between or
among Parent, the Issuer and any of Parent's Restricted
Subsidiaries; provided, however, that:
(a) if Parent, the Issuer or any Subsidiary Guarantor is
the obligor on such Indebtedness and the payee is not Parent,
the Issuer or a
63
Subsidiary Guarantor, such Indebtedness is expressly
subordinated in right of payment to the prior payment in full
in cash of all Obligations then due with respect to the Notes,
in the case of the Issuer, or the Note Guarantee, in the case
of Parent or a Subsidiary Guarantor; and
(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by
a Person other than Parent, the Issuer or a Restricted
Subsidiary of Parent and (ii) any sale or other transfer of
any such Indebtedness to a Person that is not either Parent,
the Issuer or a Restricted Subsidiary of Parent, shall be
deemed, in each case, to constitute an incurrence of such
Indebtedness by Parent, the Issuer or such Restricted
Subsidiary, as the case may be, that was not permitted by this
clause (6);
(7) the issuance by the Issuer or any of Parent's Restricted
Subsidiaries to Parent or the Issuer or to another Restricted
Subsidiary of Parent of shares of preferred equity; provided,
however, that:
(a) any subsequent issuance or transfer of Equity
Interests that results in any such preferred equity being held
by a Person other than Parent, the Issuer or a Restricted
Subsidiary of Parent, and
(b) any sale or other transfer of any such preferred
equity to a Person that is not either Parent, the Issuer or a
Restricted Subsidiary of Parent,
shall be deemed, in each case, to constitute an issuance of such
preferred equity or Disqualified Stock by the Issuer or such
Restricted Subsidiary that was not permitted by this clause (7);
(8) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of Hedging Obligations in the ordinary
course of business and not for speculative purposes;
(9) the guarantee by Parent, the Issuer or any Restricted
Subsidiary of Parent of Indebtedness of Parent, the Issuer or a
Restricted Subsidiary of Parent that was permitted to be incurred by
another provision of this Section 4.09 (including Section 4.09(a));
provided that (A) if the Indebtedness being guaranteed is
subordinated in right of payment to the Notes or the Note
Guarantees, as applicable, then the guarantee thereof shall be
subordinated in right of payment to the Notes or the Note Guarantee,
as applicable, to the same extent as the Indebtedness so guaranteed
and (B) if the Indebtedness being guaranteed is pari passu in right
of payment to the Notes or the Note Guarantee, then the guarantee
thereof shall be pari passu in right of payment to the Notes or the
Note Guarantee, as applicable, to the same extent as the
Indebtedness so guaranteed, provided, further, that any Restricted
Subsidiary of Parent that guarantees other Indebtedness pursuant to
this clause (9) shall concurrently
64
guarantee, or already be a Subsidiary Guarantor with respect to, the
Notes pursuant to Section 4.19;
(10) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of Indebtedness in respect of workers'
compensation claims, payment obligations in connection with health
or other types of social security benefits, unemployment or other
insurance or self-insurance obligations, insurance premium finance
agreements, reclamation, statutory obligations, bankers' acceptances
and performance, appeal or surety bonds in the ordinary course of
business;
(11) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of Indebtedness arising from the honoring by
a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn against insufficient funds so long as
such Indebtedness is covered within five business days;
(12) Indebtedness, Disqualified Stock or preferred equity of
any Person that is acquired by the Issuer, the Issuer or any of
Parent's Restricted Subsidiaries or merged into or consolidated
with, or transfers substantially all of its assets to, a Restricted
Subsidiary in of Parent accordance with the terms of this Indenture;
provided, however, that such Indebtedness, Disqualified Stock or
preferred equity is not incurred or issued in contemplation of such
acquisition or merger or to provide all or a portion of the funds or
credit support required to consummate such acquisition or merger;
provided further, that the aggregate principal amount of any such
Indebtedness, Disqualified Stock or preferred equity incurred or
issued pursuant to this clause (12) since the Issue Date shall not
exceed $50 million in the aggregate;
(13) the incurrence of Indebtedness consisting of
indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with
the disposition of any business, assets or a Subsidiary in
accordance with the terms of this Indenture, other than guarantees
of Indebtedness incurred or assumed by any Person acquiring all or
any portion of such business, assets or Subsidiary for the purpose
of financing such acquisition;
(14) the incurrence of Indebtedness of the Issuer owing to the
Captive Insurance Company; provided, that the aggregate principal
amount of any such Indebtedness incurred pursuant to this clause
(14) shall not exceed $35 million at any one time outstanding;
provided, further, that (i) any event that results in the Captive
Insurance Company ceasing to be a Subsidiary of Parent or (ii) any
sale or other transfer of any such Indebtedness to a Person that is
not the Captive Insurance Company, shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by Issuer that was not
permitted by this clause (14);
(15) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries in the ordinary course of business of
Capital Lease Obligations with
65
respect to Motor Vehicles in an aggregate principal amount which,
when taken together with all other Capital Lease Obligations of
Parent, the Issuer and Parent's Restricted Subsidiaries incurred
pursuant to this clause (15) and outstanding on the date of such
incurrence, does not exceed $175 million;
(16) the incurrence of Indebtedness by a Receivables
Subsidiary in a Qualified Receivables Transaction that is not
recourse to Parent or any of Parent's Restricted Subsidiary that is
not a Receivables Subsidiary (except for Standard Securitization
Undertakings), provided that such Qualified Receivables Transaction
shall be deemed an Asset Sale under this Indenture and Parent, the
Issuer or the applicable Restricted Subsidiary applies the proceeds
of such transaction in compliance with Section 4.10;
(17) Indebtedness with respect to a Motor Vehicle Financing,
provided, that such Motor Vehicle Financing shall be deemed an Asset
Sale under this Indenture and Parent, the Issuer or the applicable
Restricted Subsidiary applies the proceeds of such transaction in
compliance with Section 4.10; and
(18) the incurrence by Parent, the Issuer or any of Parent's
Restricted Subsidiaries of additional Indebtedness or issuance of
Disqualified Stock or preferred equity in an aggregate principal
amount at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to extend, renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this
clause (18), not to exceed $60 million.
(c) For purposes of determining compliance with this Section 4.09,
in the event that an item of proposed Indebtedness, Disqualified Stock or
preferred equity meets the criteria of more than one of the categories of
Permitted Debt described in clauses (1) through (18) of Section 4.09(b),
or is entitled to be incurred pursuant to Section 4.09(a), the Issuer will
be permitted to classify such item of Indebtedness, Disqualified Stock or
preferred equity on the date of its incurrence and will only be required
to include the amount and type of such Indebtedness, Disqualified Stock or
preferred equity in one of clauses (1) through (18) of Section 4.09(b) or
as having been incurred pursuant to Section 4.09(a), although the Issuer
may divide and classify an item of Indebtedness, Disqualified Stock or
preferred equity in one or more of the categories of Permitted Debt
described in such clauses or as having been incurred pursuant to Section
4.09(a) and may later reclassify all or a portion of such item of
Indebtedness, Disqualified Stock or preferred equity, in any manner that
complies with this Section 4.09. Indebtedness under Credit Facilities
outstanding on the Merger Date will be deemed to have been incurred on
such date in reliance on the exception provided by clause (1) of the
definition of "Permitted Debt". The accrual of interest or dividends, the
accretion of accreted value or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, the reclassification of preferred equity
as Indebtedness due to a change in accounting principles, and the payment
of dividends on Disqualified Stock or preferred equity in the form of
additional shares of the same class of Disqualified Stock or preferred
equity will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Stock or preferred equity for
66
purposes of this Section 4.09; provided, in each such case (other than
preferred stock that is not Disqualified Stock), that the amount of any
such accrual, accretion or amortization or payment (without duplication)
is included in Fixed Charges of Parent, the Issuer and Parent's Restricted
Subsidiaries as accrued, accreted or amortized or paid. Notwithstanding
any other provision of this Section 4.09, the maximum amount of
Indebtedness that Parent, the Issuer or any Restricted Subsidiary may
incur pursuant to this Section 4.09 shall not be deemed to be exceeded
solely as a result of fluctuations in exchange rates or currency values.
SECTION 4.10 Asset Sales. Parent and the Issuer will not, and will not
permit any of Parent's Restricted Subsidiaries to, consummate an Asset Sale
unless:
(1) Parent, the Issuer or such Restricted Subsidiary, as the case
may be, receives consideration at the time of the Asset Sale at least
equal to the Fair Market Value of the assets or Equity Interests issued or
sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by
Parent, the Issuer or such Restricted Subsidiary is in the form of cash or
Cash Equivalents or Marketable Securities. For purposes of this provision,
each of the following will be deemed to be cash:
(A) any liabilities, as shown on Parent's most recent
consolidated balance sheet, of Parent, the Issuer or any Restricted
Subsidiary of Parent (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any
Note Guarantee) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases
Parent, the Issuer or such Restricted Subsidiary from further
liability;
(B) any securities, notes or other obligations received by
Parent, the Issuer or any such Restricted Subsidiary from such
transferee that are converted by Parent, the Issuer or such
Restricted Subsidiary into cash or Cash Equivalents within 120 days
of the receipt thereof, to the extent of the cash or Cash
Equivalents received in that conversion; or
(C) any Capital Stock or assets of the kind referred to in
clause (2) or (4) of the second following paragraph of this Section
4.10.
In the event of an Asset Sale consisting of (x) any sale and leaseback
transaction, (y) any Qualified Receivables Transaction or (z) any Motor Vehicle
Financing (each, a "Designated Asset Sale"), the Net Proceeds from such
Designated Asset Sale shall be applied as follows:
(1) to, within five Business Days of the receipt of such Net
Proceeds, repay all outstanding First Priority Lien Obligations and, if
such First Priority Lien Obligations is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto; and
(2) in the event that any Net Proceeds from any Designated Asset
Sale remain after the repayment in full of all First Priority Lien
Obligations pursuant to the
67
immediately preceding clause (1) (such remaining Net Proceeds are herein
referred to as "Excess Designated Proceeds"), within 30 days after the
Designated Asset Sale giving rise to such Excess Designated Proceeds, the
Issuer will, in accordance with the provisions of Section 3.09, make a
Designated Asset Sale Offer to all Holders and all holders of Pari Passu
Indebtedness containing provisions similar to those set forth in this
Section 4.10 with respect to offers to purchase or redeem with the
proceeds of sales of assets to purchase the maximum principal amount of
notes and such Pari Passu Indebtedness that may be purchased out of the
Excess Designated Proceeds.
Unless otherwise provided in the preceding paragraph, within 365 days
after the receipt of any Net Proceeds from an Asset Sale, the Issuer (or the
applicable Restricted Subsidiary, as the case may be), may apply such Net
Proceeds, at its option:
(1) to repay First Priority Lien Obligations and, if such First
Priority Lien Obligations is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any
Capital Stock of, another Permitted Business; provided, that in the case
of any such acquisition of Capital Stock, the Permitted Business is or
becomes a Restricted Subsidiary of Parent;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current
assets under GAAP and that are used or useful in a Permitted Business.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph will constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $10 million, within 30 days thereof,
the Issuer will, in accordance with the provisions of Section 3.09, make an
Asset Sale Offer to all Holders and all holders of Pari Passu Indebtedness
containing provisions similar to those set forth in this Section 4.10 with
respect to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum principal amount of Notes and such Pari Passu Indebtedness
that may be purchased out of the Excess Proceeds.
Pending the final application of any Net Proceeds pursuant to this Section
4.10, the Issuer may temporarily reduce revolving credit borrowings or otherwise
invest the Net Proceeds in any manner that is not prohibited by this Indenture.
SECTION 4.11 Transactions with Affiliates.
(a) Parent and the Issuer will not, and will not permit any of
Parent's Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, loan, advance or guarantee with, or for
the benefit of, any Affiliate of Parent or the Issuer or of any of
Parent's Restricted Subsidiaries (each, an "Affiliate Transaction"),
unless:
68
(1) the Affiliate Transaction is on terms that are not
materially less favorable to Parent, the Issuer or the relevant
Restricted Subsidiary (as determined by in good faith by the Board
of Directors of Parent or the Issuer) than those that would have
been obtained in a comparable transaction by Parent, the Issuer or
such Restricted Subsidiary with an unrelated Person; and
(2) the Issuer delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate
consideration in excess of $5 million, a resolution of the
Board of Directors of the Issuer set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with clause (1) of this Section 4.11(a) and that such
Affiliate Transaction has been approved by a majority
(including a majority of the disinterested members, if any),
of the Board of Directors of the Issuer; and
(B) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate
consideration in excess of $15 million, an opinion as to the
fairness to Parent, the Issuer or such Restricted Subsidiary
of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm
of national standing.
(b) The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of
Section 4.11(a):
(1) any employment or consulting agreement, employee benefit
plan, officer or director indemnification agreement or any similar
arrangement entered into by Parent, the Issuer or any of Parent's
Restricted Subsidiaries in the ordinary course of business and
payments pursuant thereto;
(2) transactions between or among Parent, the Issuer and/or
any of Parent's Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary) that is an Affiliate of Parent, the Issuer or a
Restricted Subsidiary of Parent solely because Parent, the Issuer or
such Restricted Subsidiary owns an Equity Interest in, or controls,
such Person;
(4) payment of reasonable fees to, and indemnity provided on
behalf of, officers, directors, employees or consultants of Parent,
the Issuer or any of Parent's Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified
Stock) of Parent to Affiliates of Parent;
(6) Restricted Payments and Investments that do not violate
the provisions of Section 4.07;
69
(7) transactions effected pursuant to agreements in effect on
the Merger Date and described in the Offering Memorandum and any
amendment, modification or replacement of such agreement (so long as
such amendment or replacement is not less favorable to Parent, the
Issuer, any Restricted Subsidiary of Parent or the Holders, taken as
a whole, than the original agreement as in effect on the Merger Date
as determined in good faith by the Board of Directors of Parent or
the Issuer);
(8) any agreement between any Person and an Affiliate of such
Person existing at the time such Person is acquired by or merged
into Parent, the Issuer or any of Parent's Restricted Subsidiaries;
provided, that such agreement was not entered into contemplation of
such acquisition or merger, or any amendment thereto (so long as any
such amendment is not disadvantageous to the Holders of the Notes
when taken as a whole as compared to the applicable agreement as in
effect on the date of such acquisition or merger); and
(9) any Qualified Receivables Transaction.
SECTION 4.12 Liens. Parent and the Issuer will not and will not permit any
of Parent's Restricted Subsidiaries to create, incur, assume or otherwise cause
or suffer to exist or become effective (i) any Lien of any kind (other than
Permitted Liens) on any asset or property of Parent, the Issuer or any of
Parent's Restricted Subsidiaries securing Indebtedness (other than First
Priority Lien Obligations) unless the Notes are equally and ratably secured with
(or on a senior basis to, in the case of obligations subordinated in right of
payment to the Notes) the obligations so secured until such time as such
obligations are no longer secured by a Lien or (ii) any Lien of any kind
securing any First Priority Lien Obligation of Parent, the Issuer or any
Subsidiary Guarantor without effectively providing that the Notes or the
applicable Note Guarantee, as the case may be, shall be granted a second
priority security interest (subject to Permitted Liens) upon the assets or
property constituting the collateral for such First Priority Lien Obligations,
except as set forth under the Security Documents; provided, however, that, with
respect to this clause (ii), if granting such second priority security interest
requires the consent of a third party, the Issuer will use commercially
reasonable efforts to obtain such consent with respect to the second priority
interest for the benefit of the Trustee on behalf of the Holders; provided
further, however, that, with respect to this clause (ii), if such third party
does not consent to the granting of such second priority security interest after
the use of such commercially reasonable efforts, Parent, the Issuer or such
Subsidiary Guarantor, as the case may be, will not be required to provide such
security interest.
SECTION 4.13 Business Activities.
(1) Prior to the Merger Date, Parent and Merger Dub will not engage
in any activity other than as necessary to perform its obligations under
this Indenture or the Merger Agreement.
(2) From and after the Merger Date, Parent and the Issuer will not,
and will not permit any of Parent's Restricted Subsidiaries to, engage in
any business other than
70
Permitted Businesses, except to such extent as would not be material to
Parent, the Issuer and Parent's Restricted Subsidiaries taken as a whole.
SECTION 4.14 Corporate Existence. Subject to Article 5 hereof, Parent and
the Issuer shall do or cause to be done all things necessary to preserve and
keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
Parent, the Issuer or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of
Parent, the Issuer and its Subsidiaries; provided, however, that the
Issuer shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if at least two Officers of the Issuer, one of which is the
Chief Executive Officer or the Chief Financial Officer of the Issuer,
shall determine that the preservation thereof is no longer desirable in
the conduct of the business of Parent, the Issuer and their respective
Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders.
SECTION 4.15 Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, the Issuer will make an offer (a
"Change of Control Offer") to each Holder to repurchase all or any part (equal
to $1,000 or an integral multiple of $1,000 in excess thereof) of each Holder's
Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest on the Notes repurchased, if any, to,
but not including, the date of purchase, subject to the rights of the Holders on
the relevant record date to receive interest due on the relevant interest
payment date (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Issuer will or will cause the Trustee to mail a notice to
each Holder describing the transaction or transactions that constitute the
Change of Control and stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered and not withdrawn
will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date such notice
is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry
71
transfer, to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day preceding the Change of
Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission, email or letter setting forth the name of
the Holder, the principal amount of Notes the Holder delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple of $1,000 in excess
thereof.
The Issuer will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change in Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.15, the Issuer will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Section 4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Issuer will, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of
Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Issuer.
Upon receipt of the Change of Control Payment and Officers'
Certificate described above, the Paying Agent will promptly mail or wire
transfer to each Holder of Notes properly tendered and so accepted the
Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each new Note will be in a
principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof. Any Note so accepted for payment will cease to accrue interest on
and after the Change of Control Payment Date. The Issuer will publicly
announce the results of the Change of Control Offer on or as soon as
reasonably practicable after the Change of Control Payment Date.
72
(c) Notwithstanding anything to the contrary in this Section 4.15,
the Issuer will not be required to make a Change of Control Offer upon a
Change of Control if (1) a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 and purchases all Notes
properly tendered and not withdrawn under the Change of Control Offer, or
(2) notice of redemption has been given pursuant to Section 3.07, unless
and until there is a default in payment of the applicable redemption
price. Notwithstanding anything to the contrary in this Section 4.15, a
Change of Control Offer may be made in advance of a Change of Control,
conditional upon such Change of Control, if a definitive agreement is in
place for the Change of Control at the time of making of the Change of
Control Offer.
SECTION 4.16 No Layering of Debt. Parent and the Issuer will not incur,
and will not permit any Subsidiary Guarantor to incur, any Indebtedness
(including Permitted Debt) that is contractually subordinated in right of
payment to any other Indebtedness of Parent, the Issuer or such Subsidiary
Guarantor unless such Indebtedness is also contractually subordinated in right
of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of
Parent, the Issuer or any Subsidiary Guarantor solely by virtue of being
unsecured or by virtue of being secured on a first or junior Lien basis.
SECTION 4.17 Limitation on Sale and Leaseback Transactions. Parent and the
Issuer will not, and will not permit any of Parent's Restricted Subsidiaries to,
enter into any sale and leaseback transaction; provided that Parent, the Issuer
or any Restricted Subsidiary of Parent may enter into a sale and leaseback
transaction if:
(1) Parent, the Issuer or that Restricted Subsidiary, as applicable,
could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction under
the Fixed Charge Coverage Ratio test in Section 4.09(a) and (b) incurred a
Lien to secure such Indebtedness pursuant to the provisions of Section
4.12 hereof;
(2) the gross cash proceeds of that sale and leaseback transaction
are at least equal to the Fair Market Value, as determined in good faith
by the Board of Directors of the Issuer and set forth in an Officers'
Certificate delivered to the Trustee, of the property that is the subject
of that sale and leaseback transaction; and
(3) the transfer of assets in that sale and leaseback transaction is
permitted by, and Parent, the Issuer or the applicable Restricted
Subsidiary applies the proceeds of such transaction in compliance with,
Section 4.10.
SECTION 4.18 Payments for Consent. Parent and the Issuer will not, and
will not permit any of Parent's Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of
any Holder for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid and is paid to all Holders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
73
SECTION 4.19 Additional Note Guarantees. Parent and the Issuer will not
permit any of Parent's Restricted Subsidiaries, directly or indirectly, to
guarantee the payment of any other Indebtedness of Parent, the Issuer or any of
Parent's Restricted Subsidiaries unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture in the form of
Exhibit F hereto and Note Guarantee providing for the guarantee of the payment
of the Notes by such Restricted Subsidiary, which guarantee will be senior to or
pari passu with such Restricted Subsidiary's guarantee of such other
Indebtedness, and simultaneously executes and delivers the applicable Security
Documents pursuant to which its assets (of the same type as the assets of
Parent, the Issuer and the other Subsidiary Guarantors constituting Collateral)
will become part of the Collateral and will secure the Notes and Note Guarantees
in the manner specified in this Indenture and the Security Documents.
SECTION 4.20 Designation of Restricted and Unrestricted Subsidiaries. The
Board of Directors of the Issuer may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary or Person becoming a Subsidiary
through merger or consolidation or Investment therein) to be an Unrestricted
Subsidiary if that designation would not cause a Default. If a Restricted
Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair
Market Value of all outstanding Investments owned by Parent, the Issuer and
Parent's Restricted Subsidiaries in the Subsidiary designated as an Unrestricted
Subsidiary shall be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments under
Section 4.07 or under one or more clauses of the definition of "Permitted
Investments", as determined by the Issuer. That designation will only be
permitted if such Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
Any designation of a Subsidiary of Parent as an Unrestricted Subsidiary
will be evidenced to the Trustee by filing with the Trustee a certified copy of
a resolution of the Board of Directors of the Issuer giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the conditions specified in clauses (1) to (4) of the definition
of "Unrestricted Subsidiary" and was permitted under Section 4.07. If, at any
time, any Unrestricted Subsidiary would fail to meet the preceding requirements
specified in clauses (1) to (4) of the definition of "Unrestricted Subsidiary",
it will thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Restricted Subsidiary of Parent as of such date and, if such Indebtedness
is not permitted to be incurred as of such date under Section 4.09, the Issuer
will be in default of such covenant. The Board of Directors of the Issuer may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of
Parent; provided that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of Parent of any outstanding
Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09, calculated
on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Event of Default would be in existence
following such designation.
SECTION 4.21 Amendment of Security Documents. The Issuer shall not amend,
modify or supplement, or permit or consent to any amendment, modification or
supplement of, the Security Documents in any way that would be adverse to the
Holders in any material respect, except as described in the Security Documents
or as permitted under Article 9.
74
SECTION 4.22 After-Acquired Property. If Parent, the Issuer or any
Subsidiary Guarantor shall acquire any First Priority After-Acquired Property,
Parent, the Issuer or such Subsidiary Guarantor shall execute and deliver such
mortgages, deeds of trust, security instruments, financing statements and
certificates and opinions of counsel as shall be reasonably necessary to vest in
the Trustee on behalf of the Holders a perfected security interest, subject only
to Permitted Liens, in such First Priority After-Acquired Property and to have
such First Priority After-Acquired Property (but subject to certain limitations,
if applicable, including as described in the Security Documents) added to the
Collateral, and thereupon all provisions of this Indenture relating to the
Collateral shall be deemed to relate to such First Priority After-Acquired
Property to the same extent and with the same force and effect; provided,
however, that if granting such second priority security interest in such First
Priority After-Acquired Property requires the consent of a third party, the
Issuer will use commercially reasonable efforts to obtain such consent with
respect to the second priority interest for the benefit of the Trustee on behalf
of the Holders; provided further, however, that if such third party does not
consent to the granting of such second priority security interest after the use
of such commercially reasonable efforts, Parent, the Issuer or such Subsidiary
Guarantor, as the case may be, will not be required to provide such security
interest.
ARTICLE 5
SUCCESSORS
SECTION 5.01 Merger, Consolidation, or Sale of Assets.
(a) The Issuer will not, directly or indirectly, consolidate or merge with
or into another Person (whether or not the Issuer is the surviving corporation)
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets (determined on a consolidated
basis for Issuer and its Subsidiaries), in one or more related transactions to
another Person, unless:
(1) either (a) the Issuer is the surviving entity; or (b) the Person
formed by or surviving any such consolidation or merger (if other than the
Issuer) or to which such sale, assignment, transfer, lease, conveyance or
other disposition has been made is a corporation, partnership or limited
liability company organized or existing under the laws of the United
States, any state of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Issuer) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition has been made
assumes all the obligations of the Issuer under the Notes, this Indenture
and the Security Documents, in each case pursuant to a supplemental
indenture and other agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of
Default exists; and
(4) the Issuer or the Person formed by or surviving any such
consolidation or merger (if other than the Issuer), or to which such sale,
assignment, transfer, lease, conveyance or other disposition has been made
would, on the date of such transaction
75
after giving pro forma effect thereto and to any related financing
transactions as if the same had occurred at the beginning of the
applicable four-quarter period, either (a) be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) or (b) have a pro forma Fixed
Charge Coverage Ratio that is at least equal to the actual Fixed Charge
Coverage Ratio for Parent as of such date; and
(5) the Issuer delivers 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) complies with this
Indenture, that all conditions precedent in this Indenture relating to
such transaction have been satisfied and that the supplemental indenture
is enforceable;
provided, that, clause (4) of this Section 5.01(a) will not apply to:
(i) a merger of the Issuer with an Affiliate solely for the purpose
of reincorporating the Issuer in another jurisdiction; or
(ii) any consolidation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among the
Issuer and any of the Restricted Subsidiaries.
(b) Parent will not, directly or indirectly, consolidate or merge with or
into another Person (whether or not Parent is the surviving corporation) or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets (determined on a consolidated
basis for Parent and its Subsidiaries), in one or more related transactions to
another Person, unless:
(1) either (a) Parent is the surviving entity; or (b) the Person
formed by or surviving any such consolidation or merger (if other than
Parent) or to which such sale, assignment, transfer, lease, conveyance or
other disposition has been made is a corporation, partnership or limited
liability company organized or existing under the laws of the United
States, any state of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or
merger (if other than Parent) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition has been made
assumes all the obligations of Parent under Parent's Note Guarantee, this
Indenture and the Security Documents, in each case pursuant to a
supplemental indenture and other agreements reasonably satisfactory to the
Trustee;
(3) immediately after such transaction, no Default or Event of
Default exists; and
(4) Parent or the Person formed by or surviving any such
consolidation or merger (if other than Parent), or to which such sale,
assignment, transfer, lease, conveyance or other disposition has been made
would, on the date of such transaction after giving pro forma effect
thereto and to any related financing transactions as if the
76
same had occurred at the beginning of the applicable four-quarter period,
either (a) be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section
4.09(a) or (b) have a pro forma Fixed Charge Coverage Ratio that is at
least equal to the actual Fixed Charge Coverage Ratio for Parent as of
such date; and
(5) the Issuer delivers 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) complies with this
Indenture, that all conditions precedent in this Indenture relating to
such transaction have been satisfied and that the supplemental indenture
is enforceable;
provided, that, clause (4) of this Section 5.01(b) will not apply to:
(i) a merger of Parent with an Affiliate solely for the purpose of
reincorporating Parent in another jurisdiction; or
(ii) any consolidation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among Parent
and any of the Restricted Subsidiaries.
(c) Upon consummation of the Merger, the Company will execute and deliver
to the Trustee supplemental indentures of the type referred to in the clause (2)
of Section 5.01(a) pursuant to which the Company, as the surviving entity of the
Merger, will assume all the obligations of Merger Sub under this Indenture and
will succeed to, and be substitute for, and may exercise every right and power
of, Merger Sub under this Indenture. Notwithstanding anything in this Article 5
to the contrary, the merger of Merger Sub with and into the Company on the
Merger Date as described in the Merger Agreement shall be permitted under this
Indenture.
SECTION 5.02 Successor Corporation Substituted. Upon any consolidation or
merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Issuer or Parent in
a transaction that is subject to, and that complies with the provisions of,
Section 5.01 hereof, the successor corporation formed by such consolidation or
into or with which the Issuer or Parent, as applicable, is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Issuer" or "Parent", as
applicable, shall refer instead to the successor corporation and not to the
Issuer or Parent, as applicable), and may exercise every right and power of the
Issuer or Parent, as applicable, under this Indenture with the same effect as if
such successor Person had been named as the Issuer or Parent, as applicable,
herein; provided, however, that, in the case of the Issuer, the predecessor
Issuer shall not be relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale or other disposition of all
or substantially all of the properties or assets of the Issuer (determined on a
consolidated basis for the Issuer and its Subsidiaries), in one or more related
transactions subject to, and in compliance with the provisions of, Section
5.01(a) hereof.
77
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. Each of the following is an "Event of
Default:"
(1) default for 30 days in the payment when due of interest on the
Notes;
(2) default in the payment when due (at maturity, upon redemption or
otherwise) of the principal of, or premium, if any, on the Notes;
(3) failure by Parent, the Issuer or any of Parent's Restricted
Subsidiaries for five Business Days to comply with the provisions of
Section 4.15 or Section 5.01 hereof;
(4) failure by Parent, the Issuer or any of Parent's Restricted
Subsidiaries for 60 days after notice to the Issuer by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class to comply with any of the other
agreements in this Indenture;
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by Parent, the Issuer or any of Parent's
Restricted Subsidiaries (or the payment of which is guaranteed by Parent,
the Issuer or any of Parent's Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists or is created after the date of this
Indenture, if that default:
(A) is caused by a failure to pay any portion of the principal
of such Indebtedness when due and payable after the expiration of
the grace period provided in such Indebtedness (a "Payment
Default"); or
(B) results in the acceleration of such Indebtedness prior to
its Stated Maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $30.0 million or more;
(6) failure by Parent, the Issuer or any of Parent's Restricted
Subsidiaries to pay final and nonappealable judgments entered by a court
or courts of competent jurisdiction aggregating in excess of $30.0 million
(net of any amounts which are covered by insurance or bonded), which
judgments are not paid, waived, satisfied, discharged or stayed for a
period of 60 days;
(7) except as permitted by this Indenture, any Note Guarantee is
held in any judicial proceeding to be unenforceable or invalid or ceases
for any reason to be in full force and effect (other than in accordance
with the terms of such Note Guarantee and this Indenture) or Parent or any
Subsidiary Guarantor, or any Person acting on behalf of
78
Parent or any Subsidiary Guarantor denies or disaffirms its obligations
under its Note Guarantee;
(8) Parent, the Issuer or any of Parent's Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary pursuant
to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against Parent, the Issuer or any of
Parent's Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of Parent that, taken together,
would constitute a Significant Subsidiary in an involuntary case;
(B) appoints a custodian of Parent, the Issuer or any of
Parent's Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of Parent that, taken together,
would constitute a Significant Subsidiary or for all or
substantially all of the property of Parent, the Issuer or any of
Parent's Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of Parent that, taken together,
would constitute a Significant Subsidiary; or
(C) orders the liquidation of Parent, the Issuer or any of
Parent's Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of Parent that, taken together,
would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days; and
(10) unless all the Collateral has been released from the applicable
Liens in accordance with the provisions of the Security Documents, default
by Parent, the Issuer or any Restricted Subsidiary of Parent in the
performance of the Security Documents, or the occurrence of any other
event, in each case that adversely affects the enforceability, validity,
perfection or priority of such Liens on a material portion of the
Collateral granted to the Second Lien Agent for the benefit of the Trustee
and the Holders, the repudiation or disaffirmation by Parent, the Issuer
or any Restricted Subsidiary of Parent of its material obligations under
the Security Documents or the determination in a judicial
79
proceeding that the Security Documents are unenforceable or invalid
against Parent, the Issuer or any Restricted Subsidiary of Parent party
thereto for any reason with respect to a material portion of the
Collateral (which default, occurrence, repudiation, disaffirmation or
determination is not rescinded, stayed or waived by the Persons having
such authority pursuant to the Security Documents or otherwise cured
within 60 days after the Issuer receives notice thereof specifying such
occurrence from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes and demanding that such default,
occurrence, repudiation, disaffirmation or determination be remedied).
SECTION 6.02 Acceleration. In the case of an Event of Default specified in
clause (8) or (9) of Section 6.01, the principal or, premium, if any, and
accrued interest on all of the Notes then outstanding shall automatically become
due and payable immediately without any further declaration or other act on the
part of the Trustee or any Holder. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, by written notice to the Issuer (and the
Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and
accrued interest on the Notes to be immediately due and payable immediately.
SECTION 6.03 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal, premium and interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults. The Holders of at least a majority
in principal amount of the outstanding Notes by written notice to the Issuer and
to the Trustee, may waive all past defaults and rescind and annul a declaration
of acceleration and its consequences if (x) all existing Events of Default,
other than the nonpayment of the principal of, premium, if any, and accrued
interest on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (y) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05 Control by Majority. The Holders of at least a majority in
aggregate 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 exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that may involve the Trustee in personal liability or expense that is not
adequately indemnified in the judgment of the Trustee, or that the Trustee
determines in good
80
faith may be unduly prejudicial to the rights of Holders of Notes not joining in
the giving of such direction and may take any other action it deems proper that
is not inconsistent with any such direction received from Holders of Notes.
SECTION 6.06 Limitation on Suits. Except to enforce the right to receive
payment of principal, premium, if any, or interest when due, no Holder may
pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee notice that an
Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the
then outstanding Notes have requested the Trustee to pursue the remedy;
(3) such Holders have offered the Trustee security or indemnity
satisfactory to it against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days
after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the then
outstanding Notes have not given the Trustee a direction inconsistent with
such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal, premium, if any, and interest on the
Note, on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee. If an Event of Default specified
in Section 6.01(1) or (2) occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as Trustee of an express trust against the
Issuer for the whole amount of principal of, premium and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim. The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Issuer (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money
81
or other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation,
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for principal,
premium and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal,
premium and interest, respectively; and
Third: to the Issuer or to such party as a court of competent jurisdiction
shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
82
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the
express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of certificates specifically
required by any provision herein to be furnished to it, the Trustee
will examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee will not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to
expend or risk its own funds or incur any loss, liability or expense. The
Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such
Holder has offered to the Trustee security and indemnity satisfactory to
it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
83
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document (whether in
original or facsimile form) believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee
will not be liable for any action it takes or omits to take in good faith
in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or
any Opinion of Counsel will be full and complete authorization and
protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee will not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuer will be sufficient if
signed by an Officer of the Issuer.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the
Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction.
(g) 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.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder.
84
(j) The Trustee may request that the Issuer deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.
(k) The permissive rights of the Trustee to do certain things
enumerated in this Indenture shall not be construed as a duty and the
Trustee shall not be answerable for other than its negligence or willful
default with respect to such permissive rights.
(l) The Trustee shall not be bound to make any inquiry or
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note or other paper or document unless
requested in writing so to do by the holders of a majority in aggregate
principal amount of the Notes or any series affected then outstanding;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs and expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security conferred upon it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding; and the reasonable expense of such
investigation shall be paid by the Issuer, or, if paid by the Trustee
shall be repaid by the Issuer upon demand.
(m) The Trustee shall not be responsible or liable for special,
indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss or profit) irrespective of whether
the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of the action.
(n) The Trustee shall not be required to give any note, bond, or
surety in respect of the execution of the trusts and powers under this
Indenture.
(o) The Trustee shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond
its reasonable control, including without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunction of
utilities, computer (hardware or software) or communication services;
accidents; labor disputes; acts of civil or military authorities and
governmental action.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Issuer or any Affiliate of the Issuer with the same rights it
would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the SEC for permission to continue as trustee (if this Indenture
has been qualified under the TIA) or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
85
SECTION 7.04 Trustee's Disclaimer. The Trustee will not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Notes, it shall not be accountable for the Issuer's use of the proceeds from
the Notes or any money paid to the Issuer or upon the Issuer's direction under
any provision of this Indenture, it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it will not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05 Notice of Defaults. If a Default or Event of Default occurs
and is continuing and if it is known to the Trustee, the Trustee will mail to
Holders a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, or interest on, any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
SECTION 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA ss. 313(a)
(but if no event described in TIA ss. 313(a) has occurred within the
twelve months preceding the reporting date, no report need be
transmitted). The Trustee also will comply with TIA ss. 313(b)(2). The
Trustee will also transmit by mail all reports as required by TIA ss.
313(c).
(b) A copy of each report at the time of its mailing to the Holders
of Notes will be mailed by the Trustee to the Issuer and filed by the
Trustee with the SEC and each stock exchange on which the Notes are listed
in accordance with TIA ss. 313(d). The Issuer will promptly notify the
Trustee when the Notes are listed on any stock exchange.
SECTION 7.07 Compensation and Indemnity.
(a) The Issuer will pay to the Trustee from time to time
compensation for its acceptance of this Indenture and services hereunder.
The Trustee's compensation will not be limited by any law on compensation
of a trustee of an express trust. The Issuer will reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses will include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
(b) Parent, the Issuer and the Subsidiary Guarantors, jointly and
severally, will indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against
Parent, Issuer and the Subsidiary Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by Parent,
Issuer, the Subsidiary Guarantors,
86
any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except
to the extent any such loss, liability, claim, damage or expense as shall
be determined to have been caused by its negligence or bad faith. The
Trustee will notify the Issuer promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuer will not relieve
Parent, the Issuer or any of the Subsidiary Guarantors of their
obligations hereunder. Parent, Issuer or such Subsidiary Guarantor will
defend the claim and the Trustee will cooperate in the defense. The
Trustee may have separate counsel and the Issuer will pay the reasonable
fees and expenses of such counsel. None of Parent, the Issuer or any
Subsidiary Guarantor need pay for any settlement made without its consent,
which consent will not be unreasonably withheld.
(c) The obligations of Parent, Issuer and the Subsidiary Guarantors
under this Section 7.07 will survive the satisfaction and discharge of
this Indenture.
(d) To secure Parent's, the Issuer's and the Subsidiary Guarantors'
payment obligations in this Section 7.07, the Trustee will have a Lien
prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on
particular Notes. Such Lien will survive the satisfaction and discharge of
this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) hereof occurs, the
expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA ss. 313(b)(2)
to the extent applicable.
SECTION 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Issuer. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Issuer in writing. The Issuer
may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law,
(3) a custodian or public officer takes charge of the Trustee
or its property; or
87
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Issuer will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuer.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuer, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been
a Holder for at least six months, fails to comply with Section 7.10
hereof, such Holder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and
the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of
its succession to Holders. The retiring Trustee will promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Issuer's obligations under
Section 7.07 hereof will continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act will be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. There will at all times be a
Trustee hereunder that is a corporation organized and doing business under the
laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100.0 million as set forth in its most
recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
SECTION 7.11 Preferential Collection of Claims Against Issuer. The Trustee
is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA
ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA
ss. 311(a) to the extent indicated therein.
88
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance. The
Issuer may, any time, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, elect to have either Section
8.02 or 8.03 hereof be applied to all outstanding Notes and the Note Guarantees
upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02 Legal Defeasance and Discharge. Upon the Issuer's exercise
under Section 8.01 hereof of the option applicable to this Section 8.02, Parent,
the Issuer and each of the Subsidiary Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes (including the Note Guarantees) on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that Parent, the Issuer and the Subsidiary Guarantors will be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes (including the Note Guarantees), which will thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in clauses (1) and (2) below, and
to have satisfied all their other obligations under such Notes, the Note
Guarantees and this Indenture (and the Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging the same), except
for the following provisions which will survive until otherwise terminated or
discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments
in respect of the principal of, or interest or premium, if any, on such
Notes when such payments are due from the trust referred to in Section
8.04 hereof;
(2) the Issuer's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and Parent's the Issuer's and the Subsidiary Guarantors'
obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
SECTION 8.03 Covenant Defeasance. Upon the Issuer's exercise under Section
8.01 hereof of the option applicable to this Section 8.03, Parent, the Issuer
and each of the Subsidiary Guarantors will, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from each of their
obligations under the covenants contained in Sections 3.09, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 hereof are satisfied (hereinafter, "Covenant Defeasance"), and
the Notes will thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders
89
(and the consequences of any thereof) in connection with such covenants, but
will continue to be deemed "outstanding" for all other purposes hereunder (it
being understood that such Notes will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Note Guarantees, Parent, the Issuer and the Subsidiary
Guarantors may omit to comply with and will have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes and Note
Guarantees will be unaffected thereby. In addition, upon the Issuer's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(5) and 6.01(6) hereof will not constitute Events of Default.
SECTION 8.04 Conditions to Legal or Covenant Defeasance. In order to
exercise either Legal Defeasance or Covenant Defeasance under either Section
8.02 or 8.03 hereof:
(1) the Issuer must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities, in amounts as will be sufficient, in
the opinion of a nationally recognized investment bank, appraisal firm or
firm of independent public accountants, to pay the principal of, or
interest and premium, if any, on, the outstanding Notes on the stated date
for payment thereof or on the applicable redemption date, as the case may
be, and the Issuer must specify whether the Notes are being defeased to
such stated date for payment or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Issuer
has delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee (subject to customary exceptions and exclusions) confirming
that:
(A) Parent and the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has been a change
in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred,
(3) in the case of an election under Section 8.03 hereof, the Issuer
has delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee (subject to customary exceptions and exclusions) confirming
that the Holders of the outstanding Notes will not recognize income, gain
90
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;
(4) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit and
the grant of any Lien securing such borrowing);
(5) such Legal Defeasance or Covenant Defeasance will not result in
a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which Parent, the
Issuer or any of their respective Subsidiaries is a party or by which
Parent, the Issuer or any of their respective Subsidiaries is bound,
including the Credit Agreement;
(6) Parent and the Issuer must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by Parent and the Issuer
with the intent of preferring the Holders of Notes over the other
creditors of Parent or the Issuer with the intent of defeating, hindering,
delaying or defrauding creditors of Parent or the Issuer or others; and
(7) Parent and the Issuer must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof, all money
and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in
respect of the outstanding Notes will be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Issuer will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Issuer from time to time upon the request of the
Issuer any money or non-callable Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
91
8.04(1) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06 Repayment to the Issuer. Any money deposited with the Trustee
or any Paying Agent, or then held by the Issuer, in trust pursuant to Section
8.04 or Section 12.01 for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
premium, if any, or interest has become due and payable shall be paid to the
Issuer on its request or (if then held by the Issuer) will be discharged from
such trust; and the Holder of such Note will thereafter be permitted to look
only to the Issuer for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer
as trustee thereof, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which will not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Issuer.
SECTION 8.07 Reinstatement. If the Trustee or Paying Agent is unable to
apply any United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then Parent's, the
Issuer's and the Subsidiary Guarantors' obligations under this Indenture and the
Notes and the Note Guarantees will be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that,
if the Issuer makes any payment of principal of, premium, if any, or interest on
any Note following the reinstatement of its obligations, the Issuer will be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 Without Consent of Holders of Notes. Notwithstanding Section
9.02 of this Indenture, without the consent of any Holder of Notes, Parent, the
Issuer, the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture, the Notes, the Note Guarantees or the Security Documents:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to provide for the assumption of Parent's, the Issuer's or a
Subsidiary Guarantor's obligations to the Holders of Notes and Note
92
Guarantees in the case of a merger or consolidation or sale of all or
substantially all of Parent's, the Issuer's or such Subsidiary Guarantor's
assets, as applicable;
(4) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
hereunder of any such Holder;
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Note Guarantees or
the Notes to any provision of the "Description of the Notes" section of
the Offering Memorandum to the extent that such provision in that
"Description of the Notes" was intended to be a verbatim recitation of a
provision of this Indenture, the Note Guarantees or the Notes;
(7) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Indenture;
(8) to allow any Subsidiary Guarantor to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes and to release
Subsidiary Guarantors from the Note Guarantee in accordance with the terms
of this Indenture as of the date of this Indenture; or
(9) to make, complete or confirm any grant of Collateral permitted
or required by this Indenture, the Intercreditor Agreement or any of the
Security Documents or any release of Collateral that becomes effective as
set forth in this Indenture, the Intercreditor Agreement or any of the
Security Documents.
After an amendment becomes effective, the Issuer is required to mail to
each registered Holder of the Notes a notice briefly describing such amendment.
However, the failure to give such notice to all Holders of the Notes, or any
defect therein, will not impair or affect the validity of the amendment.
Upon the request of the Issuer accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture permitted by the terms of this Indenture, and upon receipt by the
Trustee of the documents described in Section 13.04 hereof, the Trustee will
join with Parent, the Issuer and the Subsidiary Guarantors in the execution of
any such amended or supplemental indenture, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 With Consent of Holders of Notes. Except as provided below in
this Section 9.02, Parent, the Issuer, the Subsidiary Guarantors and the Trustee
may amend or supplement this Indenture, the Note Guarantees, the Notes and the
Security Documents with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes (including, without limitation,
Additional Notes, if any) then outstanding voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04
93
and 6.07 hereof, any existing Default or Event of Default (other than a Default
or Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture, the
Note Guarantees, the Notes and the Security Documents may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including, without limitation, Additional Notes, if any)
voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.08 hereof shall determine which Notes are considered to be
"outstanding" for purposes of this Section 9.02.
Upon the request of the Issuer accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 13.04 hereof, the Trustee will
join with Parent, the Issuer and the Subsidiary Guarantors in the execution of
such amended or supplemental indenture unless such amended or supplemental
indenture directly affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but will not be obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Issuer will mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuer to mail such notice, or any defect therein, will not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
However, without the consent of each Holder affected, an amendment, supplement
or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the principal of or extend the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (other
than the provisions of Sections 3.09, 4.10 or 4.15 hereof);
(3) reduce the rate of or extend the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal
of, or interest or premium, if any, on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes voting as a
single class and a waiver of the payment default that resulted from such
acceleration);
94
(5) make any Note payable in money other than that stated in the
Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or impair the rights of Holders of Notes to
receive payments of principal of, or interest or premium, if any, on the
Notes;
(7) waive a redemption payment with respect to any Note (other than
a payment required by Sections 3.09, 4.10 or 4.15 hereof);
(8) release Parent or any Subsidiary Guarantor from any of its
obligations under its Note Guarantee or this Indenture, except in
accordance with the terms of this Indenture;
(9) release any Collateral from the Liens created by the Security
Documents except as specifically provided for in this Indenture or the
Security Documents;
(10) impair the right to institute suit for the enforcement of any
payment on or with respect to the Notes or any Note Guarantees;
(11) make any change in the provisions in the Intercreditor
Agreement or this Indenture dealing with the application of proceeds of
Collateral that would adversely affect the Holders of the Notes; or
(12) make any change in the preceding amendment and waiver
provisions.
In addition, any amendment to, or waiver of, the provisions of this
Indenture or any Security Document that has the effect of releasing all or
substantially all of the Collateral from the Liens securing the Notes will
require the consent of the Holders of at least 66 2/3% in aggregate principal
amount of the outstanding Notes.
SECTION 9.03 Compliance. Every amendment or supplement to this Indenture
or the Notes will be set forth in an amended or supplemental indenture that
complies with this Indenture.
SECTION 9.04 Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note is
a continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
For purposes of this Indenture, the consent of the Holder of a Global
Security shall be deemed to include any consent delivered by any member of, or
participant in, any Depository or DTC, any nominees thereof and their respective
successors and assigns, or such other depository institution hereinafter
appointed by the Issuer ("Depository Entity") by electronic means in
95
accordance with the Automated Tender Offer Procedures system or other customary
procedures of, and pursuant to authorization by, such Depository Entity.
The Issuer 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 required or permitted to be taken pursuant to this Indenture. If a
record date is fixed, then notwithstanding the first paragraph of this Section
9.04, 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 become valid or effective more than 120 days after such
record date.
Any Holder entitled hereunder to give, make or take any action under this
Indenture with regard to any particular Note may do so, or duly appoint any
Person or Persons as its agent or agents to do so, with regard to all or any
part of the principal amount of such Note.
SECTION 9.05 Notation on or Exchange of Notes. The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Issuer in exchange for all Notes may issue and the
Trustee shall, upon receipt of an Authentication Order, authenticate new Notes
that reflect the amendment, supplement or waiver.
Any consent of any Holder of Notes may include, without limitation, any
consent obtained in connection with a tender offer or exchange offer for, or
purchase of, Notes.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06 Trustee to Sign Amendments, etc. The Trustee will sign any
amended or supplemental indenture authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Issuer may not sign an amended or
supplemental indenture until its Board of Directors approves it. On the Merger
Date, the Trustee is hereby directed to execute and deliver a supplemental
indenture of the type referred to in the clause (2) of Section 5.01(a) pursuant
to which the Company, as the surviving entity of the Merger, will assume all the
obligations of Merger Sub under this Indenture and will succeed to, and be
substitute for, and may exercise every right and power of, Merger Sub under this
Indenture. Except with respect to the supplemental indenture referred to in the
immediately prior sentence, in executing any amended or supplemental indenture,
the Trustee will be provided with and (subject to Section 7.01 hereof) will be
fully protected in relying upon, in addition to the documents required by
Section 13.04 hereof, an Officers' Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10
COLLATERAL
SECTION 10.01 Security Documents. Subject to the provisions of the
Intercreditor Agreement, the payment of the principal of and interest and
96
premium, if any, on the Notes when due, whether on an interest payment date, at
maturity, by acceleration, repurchase, redemption or otherwise and whether by
the Issuer pursuant to the Notes or by Parent or any Subsidiary Guarantor
pursuant to the Note Guarantees, the payment of all other Obligations and the
performance of all other obligations of Parent, the Issuer and the Subsidiary
Guarantors under this Indenture, the Notes, the Note Guarantees and the Security
Documents are secured as provided in the Security Documents which Parent, the
Issuer and the Subsidiary Guarantors have entered into simultaneously with the
execution of this Indenture and will be secured by Security Documents hereafter
delivered as required or permitted by this Indenture. Subject to the provisions
of the Intercreditor Agreement, Parent and the Issuer shall, and shall cause
each of Parent's Restricted Subsidiaries to, and each Restricted Subsidiary of
Parent shall, do all filings (including filings of continuation statements and
amendments to UCC financing statements that may be necessary to continue the
effectiveness of such UCC financing statements) and all other actions as are
necessary or required by the Security Documents to maintain (at the sole cost
and expense of Parent, the Issuer and Parent's Restricted Subsidiaries) the
security interest created by the Security Documents in the Collateral (other
than with respect to any Collateral the security interest in which is not
required to be perfected under the Security Documents) as a perfected second
priority security interest subject only to Permitted Liens.
SECTION 10.02 Second Lien Agent.
(a) The Issuer has appointed U.S. Bank National Association to serve
as the Second Lien Agent for the benefit of the Holders of Notes. The
Second Lien Agent (directly or through co-trustees, agents or sub-agents)
will act as Second Lien Agent pursuant to the Collateral Sharing
Agreement, the Intercreditor Agreement and the Security Documents and will
hold, and will be entitled to enforce, all Liens on the Collateral created
by the Security Documents.
(b) The Second Lien Agent is authorized and empowered to appoint one
or more co-trustees, agents or sub-agents as it deems necessary or
appropriate.
(c) Subject to Section 7.01, neither the Trustee nor the Second Lien
Agent nor any of their respective officers, directors, employees,
attorneys or agents will be responsible or liable for the existence,
genuineness, value or protection of any Collateral, for the legality,
enforceability, effectiveness or sufficiency of the Security Documents,
for the creation, perfection, priority, sufficiency or protection of any
Second Priority Lien, or for any defect or deficiency as to any such
matters, or for any failure to demand, collect, foreclose or realize upon
or otherwise enforce any of the Second Priority Liens or Security
Documents or any delay in doing so.
(d) Subject to the Collateral Sharing Agreement and the
Intercreditor Agreement, the Second Lien Agent will be subject to such
directions as may be given it by the Trustee from time to time (as
required or permitted by this Indenture). Except as directed by the
Trustee as required or permitted by this Indenture, the Collateral Sharing
Agreement and the Intercreditor Agreement, the Second Lien Agent will not
be obligated:
97
(1) to act upon directions purported to be delivered to it by
any other Person;
(2) to foreclose upon or otherwise enforce any Second Priority
Lien; or
(3) to take any other action whatsoever with regard to any or
all of the Second Priority Liens, Security Documents or Collateral.
(e) The Second Lien Agent will be accountable only for amounts that
it actually receives as a result of the enforcement of the Second Priority
Liens or Security Documents.
(f) In acting as Second Lien Agent or co-trustee, agent or
sub-agent, the Second Lien Agent and each co-trustee, agent or sub-agent
may rely upon and enforce each and all of the rights, powers, immunities,
indemnities and benefits of the Trustee under Article 7 hereof.
SECTION 10.03 Authorization of Actions to Be Taken.
(a) Each Holder of Notes, by its acceptance thereof, consents and
agrees to the terms of the Collateral Sharing Agreement, each Security
Document and the Intercreditor Agreement, as originally in effect and as
amended, supplemented or replaced from time to time in accordance with its
terms or the terms of this Indenture, authorizes and directs the Trustee
and the Second Lien Agent to enter into Collateral Sharing Agreement,
authorizes and empowers the Trustee to direct the Second Lien Agent to
execute and deliver, and the Trustee hereby directs the Second Lien Agent
to execute and deliver, the Intercreditor Agreement and the Security
Documents to which it is a party, and authorizes and empowers the Trustee
and the Second Lien Agent to bind the Holders of Notes and other holders
of Obligations under this Indenture, the Notes, the Note Guarantees and
the Security Documents as set forth in the Security Documents to which it
is a party and the Intercreditor Agreement and the Collateral Sharing
Agreement and to perform its obligations and exercise its rights and
powers thereunder.
(b) The Second Lien Agent and the Trustee are authorized and
empowered to receive for the benefit of the Holders of Notes any funds
collected or distributed under the Intercreditor Agreement or the Security
Documents to which the Second Lien Agent or Trustee is a party and to make
further distributions of such funds to the Holders of Notes according to
the provisions of the Collateral Sharing Agreement and this Indenture.
(c) Subject to the provisions of Sections 7.01 and 7.02 and except
as otherwise provided in the Collateral Sharing Agreement the
Intercreditor Agreement, the Trustee may, in its sole discretion and
without the consent of the Holders, direct, on behalf of the Holders, the
Second Lien Agent to take all actions it deems necessary or appropriate in
order to:
(1) foreclose upon or otherwise enforce any or all of the
Second Priority Liens;
98
(2) enforce any of the terms of the Security Documents to
which the Second Lien Agent is a party; or
(3) collect and receive payment of any and all Obligations
under this Indenture, the Notes, the Note Guarantees and the
Security Documents.
(d) Subject to the Intercreditor Agreement and the Collateral
Sharing Agreement, the Trustee is authorized and empowered to institute
and maintain, or direct the Second Lien Agent to institute and maintain,
such suits and proceedings as it may deem expedient to protect or enforce
the Second Priority Liens or the Security Documents to which the Second
Lien Agent is a party or to prevent any impairment of Collateral by any
acts that may be unlawful or in violation of the Security Documents to
which the Second Lien Agent is a party or this Indenture, and such suits
and proceedings as the Trustee or the Second Lien Agent may deem expedient
to preserve or protect its interests and the interests of the Holders of
Notes in the Collateral, including power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of Holders, the Trustee or
the Second Lien Agent.
SECTION 10.04 Release of Liens.
(a) Subject to clauses (b) and (c) of this Section 10.04, Collateral
may be released from the Lien and security interest created by the
Security Documents at any time or from time to time in accordance with the
provisions of the Security Documents, the Intercreditor Agreement or as
provided hereby. Upon the request of the Issuer pursuant to an Officers'
Certificate and Opinion of Counsel certifying that all conditions
precedent hereunder have been met, Parent, the Issuer and the Subsidiary
Guarantors will be entitled to the release of assets included in the
Collateral from the Liens securing the Notes, and the Second Lien Agent
and the Trustee (if the Trustee is not then the Second Lien Agent) shall
release the same from such Liens at the Issuer's sole cost and expense,
under any one or more of the following circumstances:
(1) subject to the following paragraph, upon the Discharge of
Senior Lender Claims and concurrent release of all other Liens on
such property or assets securing First Priority Lien Obligations
(including all commitments and letters of credit thereunder);
(2) to enable Parent, the Issuer or any Subsidiary Guarantor
to consummate the disposition of such property or assets to the
extent not prohibited under Section 4.10;
(3) in the case of a Subsidiary Guarantor that is released
from its Note Guarantee with respect to the Notes, the release of
the property and assets of such Subsidiary Guarantor; or
(4) as described under Article 9.
99
If an Event of Default under the Indenture exists on the date of
Discharge of Senior Lender Claims, the Second Priority Liens on the
Collateral securing the Notes will not be released, except to the extent
the Collateral or any portion thereof was disposed of in order to repay
the First Priority Lien Obligations secured by the Collateral, and
thereafter the Trustee (or another designated representative acting at the
direction of the holders of a majority of outstanding principal amount of
the Notes and Other Second-Lien Obligations) will have the right to direct
the First Lien Agent to foreclose upon the Collateral (but in such event,
the Liens on the Collateral securing the Notes will be released when such
Event of Default and all other Events of Default under the Indenture cease
to exist).
Upon the receipt of an Officers' Certificate from the Issuer, as
described above, and any necessary or proper instruments of termination,
satisfaction or release prepared by the Issuer, the Trustee shall instruct
the Second Lien Agent to execute, deliver or acknowledge such instruments
or releases to evidence the release of any Collateral permitted to be
released pursuant to this Indenture or the Security Documents or the
Intercreditor Agreement.
(b) Except as otherwise provided in the Intercreditor Agreement, no
Collateral may be released from the Lien and security interest created by
the Security Documents unless the Officers' Certificate required by this
Section 10.04 has been delivered to the Second Lien Agent and the Trustee
not less than five days prior to the date of such release.
(c) At any time when a Default or Event of Default has occurred and
is continuing and the maturity of the Notes has been accelerated (whether
by declaration or otherwise) and the Trustee has delivered a notice of
acceleration to the Second Lien Agent, no release of Collateral pursuant
to the provisions of this Indenture or the Security Documents will be
effective as against the Holders, except as otherwise provided in the
Intercreditor Agreement.
SECTION 10.05 Filing, Recording and Opinions.
(a) In the event that this Indenture shall be required to be
qualified, and shall be so qualified, pursuant to the TIA, the Issuer will
comply with the provisions of TIA ss.314(b) and 314(d), except to the
extent not required as set forth in any SEC regulation or interpretation
(including any no-action letter issued by the Staff of the SEC, whether
issued to the Issuer or any other Person). Following such qualification,
if any, to the extent the Issuer is required to furnish to the Trustee an
Opinion of Counsel pursuant to TIA ss.314(b)(2), the Issuer will furnish
such opinion not more than 60 but not less than 30 days prior to each May
31.
Any release of Collateral permitted by Section 10.04 hereof will be
deemed not to impair the Liens under the Indenture and the Security
Documents in contravention thereof and, in the event that this Indenture
shall be required to be qualified, and shall be so qualified, pursuant to
the TIA, any person that is required to deliver an Officers' Certificate
or Opinion of Counsel pursuant to Section 314(d) of the TIA, shall be
entitled
100
to rely upon the foregoing as a basis for delivery of such certificate or
opinion. The Trustee may, to the extent permitted by Section 7.01 and 7.02
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and
Opinion of Counsel.
(b) If any Collateral is released in accordance with this Indenture
or any Security Document and if the Issuer has delivered the certificates
and documents required by the Security Documents and Section 10.04, the
Trustee will determine whether it has received all documentation required
by this Indenture in connection with such release and, based on such
determination and the Opinion of Counsel delivered pursuant to Section
10.04, will, upon request, deliver a certificate to the Second Lien Agent
setting forth such determination.
SECTION 10.06 Powers Exercisable by Receiver or Trustee. In case the
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article 10 upon Parent, the Issuer or a
Subsidiary Guarantor with respect to the release, sale or other disposition of
such property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee shall be deemed the equivalent of any similar
instrument of Parent, the Issuer or a Subsidiary Guarantor or of any officer or
officers thereof required by the provisions of this Article 10; and if the
Second Lien Agent or the Trustee shall be in the possession of the Collateral
under any provision of this Indenture, then such powers may be exercised by the
Second Lien Agent or the Trustee.
SECTION 10.07 Release Upon Termination of the Issuer's Obligations. In the
event (i) that the Issuer delivers to the Trustee, in form and substance
acceptable to it, an Officers' Certificate and Opinion of Counsel certifying
that all the obligations under this Indenture, the Notes and the Security
Documents have been satisfied and discharged by the payment in full of the
Issuer's obligations under the Notes, this Indenture and the Security Documents,
and all such obligations have been so satisfied, or (ii) a discharge, legal
defeasance or covenant defeasance of this Indenture occurs under Article 8 or 12
(provided that in the case of this clause (ii), no Notes are then outstanding),
the Trustee shall deliver to the Issuer and the Second Lien Agent a notice
stating that the Trustee, on behalf of the Holders, disclaims and gives up any
and all rights it has in or to the Collateral, and any rights it has under the
Security Documents, and upon receipt by the Collateral Agent of such notice, the
Second Lien Agent shall be deemed not to hold a Lien in the Collateral on behalf
of the Trustee and shall do or cause to be done all acts reasonably necessary to
release such Lien as soon as is reasonably practicable.
SECTION 10.08 Designations. Except as provided in the next sentence, for
purposes of the provisions hereof and the Intercreditor Agreement requiring the
Issuer to designate Indebtedness for the purposes of the terms First Priority
Lien Obligations and Other Second-Lien Obligations or any other such
designations hereunder or under the Intercreditor Agreement, any such
designation shall be sufficient if the relevant designation provides in writing
that such First Priority Lien Obligations or Other Second-Lien Obligations are
permitted under this Indenture and is signed on behalf of the Issuer by an
Officer and delivered to the Trustee, the Second Lien Agent and the First Lien
Agent. For all purposes hereof and the Intercreditor Agreement, the Issuer
hereby designates the Obligations pursuant to the Credit Agreement as in effect
on the Issue Date as First Priority Lien Obligations.
101
ARTICLE 11
NOTE GUARANTEES
SECTION 11.01 Guarantee.
(a) Subject to this Article 11, Parent and each of the Subsidiary
Guarantors hereby, jointly and severally, unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes, the Security Documents or
the obligations of the Issuer hereunder or thereunder, that:
(1) the principal of, premium, if any, and interest on the
Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful,
and all other obligations of the Issuer to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, Parent and each of the
Subsidiary Guarantors will be jointly and severally obligated to pay the
same immediately. Parent and each Subsidiary Guarantor agrees that this is
a guarantee of payment and not a guarantee of collection.
(b) Parent and the Subsidiary Guarantors hereby agree that their
obligations hereunder are unconditional, irrespective of the validity,
regularity or enforceability of the Notes, this Indenture or the Security
Documents, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Notes with respect to any provisions hereof
or thereof, the recovery of any judgment against the Issuer, any action to
enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
Parent and each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuer, any right to require a proceeding
first against the Issuer, protest, notice and all demands whatsoever and
covenant that this Note Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes, this
Indenture and the Security Documents.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to the Issuer, Parent, the Subsidiary Guarantors or
any custodian, trustee, liquidator or other similar official acting in
relation to any of Parent, the Issuer or the Subsidiary Guarantors, any
amount paid by either to the Trustee or such Holder, this Note Guarantee,
to the extent theretofore discharged, will be reinstated in full force and
effect.
102
(d) Parent and each Subsidiary Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect
of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Parent and each Subsidiary Guarantor
further agrees that, as between Parent and the Subsidiary Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the
maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 6 hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in
the event of any declaration of acceleration of such obligations as
provided in Article 6 hereof, such obligations (whether or not due and
payable) will forthwith become due and payable by Parent and the
Subsidiary Guarantors for the purpose of this Note Guarantee, in each case
subject to any rescission of any such acceleration pursuant to Section
6.04. Parent and the Subsidiary Guarantors will have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Note Guarantee.
SECTION 11.02 Limitation on Guarantor Liability. Parent and each
Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
Parent or such Subsidiary Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders, Parent and the Subsidiary Guarantors hereby
irrevocably agree that the obligations of Parent or such Subsidiary Guarantor
will be limited to the maximum amount that will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of Parent or such
Subsidiary Guarantor that are relevant under such laws, and after giving effect
to any collections from, rights to receive contribution from or payments made by
or on behalf of Parent or any other Subsidiary Guarantor in respect of the
obligations of Parent or such other Subsidiary Guarantor under this Article 11,
result in the obligations of Parent or such Subsidiary Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 11.03 Execution and Delivery of Note Guarantee. To evidence its
Note Guarantee set forth in Section 11.01 hereof, Parent and each Subsidiary
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit E hereto will be endorsed by an Officer of Parent
or such Subsidiary Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of Parent or such
Subsidiary Guarantor by one of its Officers.
Parent and each Subsidiary Guarantor hereby agrees that its Note Guarantee
set forth in Section 11.01 hereof will remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
103
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Note Guarantee set forth in this
Indenture on behalf of Parent and the Subsidiary Guarantors.
In the event that any Subsidiary of Parent or other Person is required to
become a Subsidiary Guarantor pursuant to Section 4.20, Parent and the Issuer
will cause such Subsidiary or other Person to comply with the provisions of
Section 4.20 and this Article 11.
SECTION 11.04 Subsidiary Guarantors May Consolidate, etc., on Certain
Terms. Except as otherwise provided in this Section 11.04, the Issuer and Parent
will not permit any Subsidiary Guarantor to consolidate or merge with or into
another Person (whether or not such Subsidiary Guarantor is the surviving
corporation) or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets, in one or more related
transactions to another Person, unless:
(1) immediately after such transaction, no Default or Event of
Default exists;
(2) either
(a) (i) such Subsidiary Guarantor is the surviving entity or
the Person formed by or surviving any such consolidation or merger
(if other than such Subsidiary Guarantor) or to which such sale,
assignment, transfer, conveyance or other disposition has been made
is a corporation, partnership or limited liability company organized
or existing under the laws of the jurisdiction under which such
Subsidiary Guarantor was organized or under the laws the United
States, any state of the United States or the District of Columbia
and (ii) the Person formed by or surviving any such consolidation or
merger (if other than such Subsidiary Guarantor) or the Person to
which such sale, assignment, transfer, conveyance or other
disposition has been made assumes all the obligations of such
Subsidiary Guarantor under such Subsidiary Guarantor's Note
Guarantee, this Indenture and the Security Documents, in each case
pursuant to a supplemental indenture and other agreements reasonably
satisfactory to the Trustee; or
(b) in the case of a Subsidiary Guarantor that has been
disposed of in its entirety to another Person (other than to the
Issuer or any Affiliate of the Issuer), whether through a merger,
consolidation or sale of Capital Stock or assets, the Issuer
delivers an Officers' Certificate to the Trustee to the effect that
the Issuer will comply with its obligations under Section 4.10 in
respect of such sale or other disposition; and
(3) the Issuer delivers 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) complies with this
Indenture.
In case of any such consolidation, merger, sale or disposition and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and substantially in the form of Exhibit F hereto, of
the Note Guarantee endorsed upon the Notes and the due and punctual performance
104
of all of the covenants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor Person will succeed to and be substituted
for the Subsidiary Guarantor with the same effect as if it had been named herein
as a Subsidiary Guarantor. Such successor Person thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee. All the Note Guarantees so issued will in all
respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes will prevent any consolidation or merger of a Subsidiary Guarantor with or
into Parent, the Issuer or another Subsidiary Guarantor, or will prevent any
sale or disposition of all or substantially all of the assets of a Subsidiary
Guarantor to Parent, the Issuer or another Subsidiary Guarantor.
SECTION 11.05 Releases.
The Note Guarantee of a Subsidiary Guarantor will be released, and such
Subsidiary Guarantor will be released from and relieved of all of its
obligations under its Note Guarantee and this Indenture:
(1) in connection with any sale, disposition or transfer of all or
substantially all of the assets of that Subsidiary Guarantor
(including by way of merger or consolidation) to a Person that is
not (either before or after giving effect to such transaction)
Parent, the Issuer or a Restricted Subsidiary of Parent, if the
sale, disposition or transfer does not violate the first paragraph
of Section 4.10;
(2) in connection with any sale, disposition or transfer of all of the
Capital Stock of that Subsidiary Guarantor to a Person that is not
(either before or after giving effect to such transaction) Parent,
the Issuer or a Restricted Subsidiary of Parent, if the sale,
disposition or transfer does not violate the first paragraph of
Section 4.10;
(3) if the Issuer designates any Restricted Subsidiary that is a
Subsidiary Guarantor to be an Unrestricted Subsidiary in accordance
with the applicable provisions of this Indenture;
(4) upon Legal Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance
with Article 12 hereof; or
(5) at such time as such Subsidiary Guarantor does not have any
Indebtedness outstanding that would have required such Subsidiary
Guarantor to enter into a Note Guarantee pursuant to Section 4.19.
Upon delivery by the Issuer to the Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that a release of a Subsidiary Guarantor in
accordance with this Section 11.05 is authorized or permitted by this Indenture,
the Trustee will, upon the request and at the expense of the Issuer, execute any
105
documents reasonably requested by the Issuer in order to evidence the release of
such Subsidiary Guarantor from its obligations under its Note Guarantee and this
Indenture.
ARTICLE 12
SATISFACTION AND DISCHARGE
SECTION 12.01 Satisfaction and Discharge. This Indenture will be
discharged and will cease to be of further effect as to all Notes issued
hereunder when:
(1) either
(a) all Notes that have been authenticated and, except lost,
stolen or destroyed Notes that have been replaced or paid and Notes
for whose payment money has been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer,
have been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of
a notice of redemption or otherwise or will become due and payable
within one year and Parent, the Issuer or any Subsidiary Guarantor
has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust solely for the benefit of the Holders, cash
in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government
Securities, in amounts as will be sufficient, without consideration
of any reinvestment of interest, to pay and discharge the entire
Indebtedness (including all principal and interest) on the Notes not
delivered to the Trustee for cancellation;
(2) Parent, the Issuer or any Subsidiary Guarantor has paid or
caused to be paid all sums payable by it under this Indenture; and
(3) the Issuer has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied. Upon satisfaction of the conditions set forth in
this Section 12.01, and the receipt of such Officers' Certificate and Opinion of
counsel, the Trustee, upon request and at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, if money
has been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section 12.01, the provisions of Sections 12.02 and 8.06 will survive. In
addition, nothing in this Section 12.01 will be deemed to discharge those
provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
106
SECTION 12.02 Application of Trust Money. Subject to the provisions of
Section 8.06 hereof, all money deposited with the Trustee pursuant to Section
12.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 12.01 hereof 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,
Parent's, the Issuer's and any Subsidiary Guarantor's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 12.01 hereof; provided that if the Issuer has made
any payment of principal of, premium, if any, or interest on any Notes because
of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA ss.
318(c) (other than, prior to any qualification of this Indenture under the TIA,
the limitations, qualifications or conflicts set forth in Sections 9.03, 9.06
and 10.05), the imposed duties will control.
SECTION 13.02 Notices. Any notice or communication by Parent, the Issuer,
any Subsidiary Guarantor or the Trustee to the others is duly given if in
writing and delivered in Person or mailed by first class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to Parent, the Issuer and/or any Subsidiary Guarantor:
c/o Swift Aviation Group. Inc.
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Peru
With a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
107
If to the Trustee:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Parent, the Issuer, any Subsidiary Guarantor or the Trustee, by notice to
the others, may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders) will be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed, when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails a notice or communication to Holders, it will mail a
copy to the Trustee and each Agent at the same time.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Where this Indenture provides for notice of any event to a Holder of a
Global Note, such notice shall be sufficiently given if given to the Depository
for such Note (or its designee), pursuant to the Applicable Procedures, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice.
SECTION 13.03 Communication by Holders of Notes with Other Holders of
Notes. Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Issuer to the Trustee to take any action under
108
this Indenture, the Issuer shall furnish to the Trustee (except that the Opinion
of Counsel referred to in Section 13.04(2) hereof shall not be required in
connection with the Authentication Order):
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Officer of Parent, the Issuer or any
Subsidiary Guarantor may be based, insofar as it relates to legal matters, upon
a certificate of opinion of, or representations by, counsel, unless such Officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, and may state that it is so based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an Officer or Officers of Parent, the Issuer or such Subsidiary Guarantor
stating that the information with respect to such factual matters is in
possession of Parent, the Issuer or such Subsidiary Guarantor, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate of opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 13.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA ss. 314(a)(4)) must comply with the provisions of TIA ss. 314(e) and must
include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
109
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 13.06 Rules by Trustee and Agents. The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its functions.
SECTION 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders. No director, officer, employee, incorporator or stockholder of
Parent, the Issuer or any Subsidiary Guarantor, as such, will have any liability
for any obligations of Parent, the Issuer or the Subsidiary Guarantors under the
Notes, this Indenture, the Note Guarantees or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.
SECTION 13.08 Governing Law. THIS INDENTURE AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION,
VALIDITY AND ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
SECTION 13.09 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of Parent, the Issuer or their respective Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 13.10 Successors. All agreements of Parent and the Issuer in this
Indenture and the Notes will bind its successors. All agreements of the Trustee
in this Indenture will bind its successors. All agreements of each Subsidiary
Guarantor in this Indenture will bind its successors, except as otherwise
provided in Section 11.05.
SECTION 13.11 Severability. In case any provision in this Indenture or in
the Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
SECTION 13.12 Counterpart Originals. The parties may sign any number of
copies of this Indenture. Each signed copy will be an original, but all of them
together represent the same agreement.
SECTION 13.13 Table of Contents, Headings, etc. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this
110
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and will in no way modify or restrict any of
the terms or provisions hereof.
SECTION 13.14 Benefits of Indenture. Nothing in this Indenture or in the
Notes or Note Guarantees, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders of Notes,
any benefit or any legal or equitable right, remedy or claim under this
Indenture, the Notes or the Note Guarantees.
[Signatures on following page]
111
SIGNATURES
SAINT ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
SAINT CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
INDENTURE FOR FIXED RATE NOTES
U.S. BANK NATIONAL ASSOCIATION, as
Trustee and as Second Lien Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President