Exhibit 4.1
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UGS CORP.,
as the Issuer,
the Guarantors named herein
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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INDENTURE
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Dated as of May 27, 2004
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10% Senior Subordinated Notes due 2012
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1).................................................................. 7.10
(a)(2)............................................................... 7.10
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(a)(5)............................................................... 7.08; 7.10
(b).................................................................. 7.08; 7.10; 12.02
(c).................................................................. N.A.
311(a)..................................................................... 7.11
(b).................................................................. 7.11
(c).................................................................. N.A.
312(a)............................................................... 2.04
(b).................................................................. 12.03
(c).................................................................. 12.03
313(a)..................................................................... 7.06
(b)(1)............................................................... 7.06
(b)(2)............................................................... 7.06
(c).................................................................. 7.06; 12.02
(d).................................................................. 7.06
314(a)..................................................................... 4.06; 4.17
(b).................................................................. N.A.
(c)(1)............................................................... 7.02; 12.04; 12.05
(c)(2)............................................................... 7.02; 12.04; 12.05
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e).................................................................. 12.05
(f).................................................................. N.A.
315(a)..................................................................... 7.01(b)
(b).................................................................. 7.05
(c).................................................................. 7.01
(d).................................................................. 6.05; 7.01(c)
(e).................................................................. 6.11
316(a)(last sentence)...................................................... 2.08
(a)(1)(A)............................................................ 6.02
(a)(1)(B)............................................................ 6.04
(a)(2)............................................................... 9.02
(b).................................................................. 6.07
(c).................................................................. 9.05
317(a)(1).................................................................. 6.08
(a)(2)............................................................... 6.09
(b).................................................................. 2.03
318(a)..................................................................... 12.01
(c).................................................................. 12.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.......................................................................... 1
SECTION 1.02. OTHER DEFINITIONS.................................................................... 34
SECTION 1.03. INCORPORATION BY REFERENCE OF TIA.................................................... 36
SECTION 1.04. RULES OF CONSTRUCTION................................................................ 37
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM, DATING AND TERMS............................................................... 38
SECTION 2.02. EXECUTION AND AUTHENTICATION......................................................... 44
SECTION 2.03. REGISTRAR AND PAYING AGENT........................................................... 45
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST................................................. 46
SECTION 2.05. HOLDER LISTS......................................................................... 47
SECTION 2.06. TRANSFER AND EXCHANGE................................................................ 47
SECTION 2.07. REPLACEMENT SECURITIES............................................................... 50
SECTION 2.08. OUTSTANDING SECURITIES............................................................... 51
SECTION 2.09. TREASURY SECURITIES.................................................................. 51
SECTION 2.10. TEMPORARY SECURITIES................................................................. 52
SECTION 2.11. CANCELLATION......................................................................... 52
SECTION 2.12. DEFAULTED INTEREST................................................................... 52
SECTION 2.13. CUSIP, ISIN AND "COMMON CODE" NUMBERS................................................ 53
SECTION 2.14. DEPOSIT OF MONEYS.................................................................... 53
SECTION 2.15. COMPUTATION OF INTEREST.............................................................. 53
SECTION 2.16. CALCULATION OF PRINCIPAL AMOUNT OF SECURITIES........................................ 54
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE................................................................... 54
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED............................................... 54
SECTION 3.03. NOTICE OF REDEMPTION................................................................. 55
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION....................................................... 56
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.......................................................... 56
SECTION 3.06. SECURITIES REDEEMED IN PART.......................................................... 57
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES................................................................ 57
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY...................................................... 57
SECTION 4.03. CORPORATE EXISTENCE.................................................................. 58
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS.................................................... 58
SECTION 4.05. MAINTENANCE OF PROPERTIES AND INSURANCE.............................................. 58
SECTION 4.06. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT............................................ 59
SECTION 4.07. COMPLIANCE WITH LAWS................................................................. 59
SECTION 4.08. WAIVER OF STAY, EXTENSION OR USURY LAWS.............................................. 59
SECTION 4.09. CHANGE OF CONTROL.................................................................... 60
SECTION 4.10. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK........................... 62
SECTION 4.11. RESTRICTED PAYMENTS.................................................................. 67
SECTION 4.12. LIENS................................................................................ 74
SECTION 4.13. ASSET SALES.......................................................................... 75
SECTION 4.14. TRANSACTIONS WITH AFFILIATES......................................................... 79
SECTION 4.15. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES....................... 81
SECTION 4.16. ADDITIONAL SUBSIDIARY GUARANTEES..................................................... 83
SECTION 4.17. REPORTS TO HOLDERS................................................................... 84
SECTION 4.18. LIMITATION ON LAYERING............................................................... 85
SECTION 4.19. BUSINESS ACTIVITIES.................................................................. 85
SECTION 4.20. PAYMENTS FOR CONSENT................................................................. 85
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS............................................. 86
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.................................................................... 87
SECTION 6.02. ACCELERATION......................................................................... 89
SECTION 6.03. OTHER REMEDIES....................................................................... 90
SECTION 6.04. WAIVER OF DEFAULTS................................................................... 91
SECTION 6.05. CONTROL BY MAJORITY.................................................................. 91
SECTION 6.06. LIMITATION ON SUITS.................................................................. 92
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SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT................................................. 92
SECTION 6.08. COLLECTION SUIT BY TRUSTEE........................................................... 92
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM..................................................... 93
SECTION 6.10. PRIORITIES........................................................................... 93
SECTION 6.11. UNDERTAKING FOR COSTS................................................................ 94
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.................................................................... 94
SECTION 7.02. RIGHTS OF TRUSTEE.................................................................... 95
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE......................................................... 97
SECTION 7.04. TRUSTEE'S DISCLAIMER................................................................. 97
SECTION 7.05. NOTICE OF DEFAULT.................................................................... 97
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS........................................................ 98
SECTION 7.07. COMPENSATION AND INDEMNITY........................................................... 98
SECTION 7.08. REPLACEMENT OF TRUSTEE............................................................... 99
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC..................................................... 100
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION........................................................ 100
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER................................. 101
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE ISSUER'S OBLIGATIONS.............................................. 101
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE............................................. 103
SECTION 8.03. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE................................ 104
SECTION 8.04. APPLICATION OF TRUST MONEY........................................................... 105
SECTION 8.05. REPAYMENT TO THE ISSUER.............................................................. 106
SECTION 8.06. REINSTATEMENT........................................................................ 106
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS........................................................... 107
SECTION 9.02. WITH CONSENT OF HOLDERS.............................................................. 108
SECTION 9.03. EFFECT ON SENIOR DEBT................................................................ 109
SECTION 9.04. COMPLIANCE WITH TIA.................................................................. 109
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SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS.................................................... 109
SECTION 9.06. NOTATION ON OR EXCHANGE OF SECURITIES................................................ 110
SECTION 9.07. TRUSTEE TO SIGN AMENDMENTS, ETC...................................................... 110
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. SECURITIES SUBORDINATED TO SENIOR DEBT............................................... 111
SECTION 10.02. SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR DEBT IS IN DEFAULT...................... 111
SECTION 10.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR DEBT ON
DISSOLUTION, LIQUIDATION OR REORGANIZATION OF THE ISSUER......................... 113
SECTION 10.04. PAYMENTS MAY BE MADE PRIOR TO DISSOLUTION............................................ 114
SECTION 10.05. HOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR DEBT......................... 115
SECTION 10.06. OBLIGATIONS OF THE ISSUER UNCONDITIONAL.............................................. 115
SECTION 10.07. NOTICE TO TRUSTEE.................................................................... 116
SECTION 10.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT....................... 116
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR DEBT.................................................... 116
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE ISSUER OR HOLDERS OF SENIOR DEBT................................ 117
SECTION 10.11. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF SECURITIES.......... 117
SECTION 10.12. THIS ARTICLE TEN NOT TO PREVENT EVENTS OF DEFAULT.................................... 118
SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED................................................ 118
ARTICLE ELEVEN
GUARANTEES
SECTION 11.01. UNCONDITIONAL GUARANTEE.............................................................. 118
SECTION 11.02. SUBORDINATION OF GUARANTEE........................................................... 120
SECTION 11.03. LIMITATION ON GUARANTOR LIABILITY.................................................... 120
SECTION 11.04. EXECUTION AND DELIVERY OF GUARANTEE FOR FUTURE GUARANTORS............................ 120
SECTION 11.05. RELEASE OF A GUARANTOR............................................................... 121
SECTION 11.06. WAIVER OF SUBROGATION................................................................ 123
SECTION 11.07. IMMEDIATE PAYMENT.................................................................... 123
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SECTION 11.08. NO SETOFF............................................................................ 123
SECTION 11.09. GUARANTEE OBLIGATIONS ABSOLUTE....................................................... 123
SECTION 11.10. GUARANTEE OBLIGATIONS CONTINUING..................................................... 124
SECTION 11.11. GUARANTEE OBLIGATIONS NOT REDUCED.................................................... 124
SECTION 11.12. GUARANTEE OBLIGATIONS REINSTATED..................................................... 124
SECTION 11.13. GUARANTEE OBLIGATIONS NOT AFFECTED................................................... 124
SECTION 11.14. WAIVER............................................................................... 126
SECTION 11.15. NO OBLIGATION TO TAKE ACTION AGAINST THE ISSUER...................................... 126
SECTION 11.16. DEALING WITH THE ISSUER AND OTHERS................................................... 126
SECTION 11.17. DEFAULT AND ENFORCEMENT.............................................................. 127
SECTION 11.18. AMENDMENT, ETC....................................................................... 127
SECTION 11.19. ACKNOWLEDGMENT....................................................................... 127
SECTION 11.20. COSTS AND EXPENSES................................................................... 127
SECTION 11.21. NO MERGER OR WAIVER; CUMULATIVE REMEDIES............................................. 127
SECTION 11.22. GUARANTEE IN ADDITION TO OTHER GUARANTEE OBLIGATIONS................................. 128
SECTION 11.23. SEVERABILITY......................................................................... 128
SECTION 11.24. SUCCESSORS AND ASSIGNS............................................................... 128
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA CONTROLS......................................................................... 128
SECTION 12.02. NOTICES.............................................................................. 128
SECTION 12.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS......................................... 130
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT................................... 130
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION........................................ 130
SECTION 12.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR............................................ 131
SECTION 12.07. LEGAL HOLIDAYS....................................................................... 131
SECTION 12.08. GOVERNING LAW........................................................................ 131
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS........................................ 131
SECTION 12.10. NO RECOURSE AGAINST OTHERS........................................................... 131
SECTION 12.11. SUCCESSORS........................................................................... 131
SECTION 12.12. DUPLICATE ORIGINALS.................................................................. 132
SECTION 12.13. SEVERABILITY......................................................................... 132
Signatures............................................................................................. S-1
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EXHIBITS
Exhibit A - Form of Initial Security.............................................................. A-1
Exhibit B - Form of Legend for 144A Securities and Other Securities That Are Restricted
Securities............................................................................ B-1
Exhibit C - Form of Legend for Regulation S Security.............................................. C-1
Exhibit D - Form of Legend for Global Security.................................................... D-1
Exhibit E - Form of Non-Distribution Letter for Institutional Accredited Investors................ E-1
Exhibit F - Form of Certificate To Be Delivered in Connection with Transfers Pursuant to
Regulation S.......................................................................... F-1
Exhibit G - Form of Indenture Supplement to add Securities Guarantor.............................. G-1
Note: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE dated as of May 27, 2004 between UGS CORP., a Delaware
corporation (the "ISSUER"), as issuer, the Guarantors (as defined herein) and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the
"TRUSTEE").
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, each party hereto covenants and agrees as
follows for the benefit of the other parties and for the equal and ratable
benefit of all Holders of (i) the Issuer's 10% Senior Subordinated Notes, Series
A, due 2012, issued on the date hereof and the guarantees thereof by certain of
the Issuer's subsidiaries (the "INITIAL SECURITIES"), (ii) if and when issued,
an unlimited principal amount of additional 10% Senior Subordinated Notes,
Series A, due 2012 in a non-registered offering or 10% Senior Subordinated
Notes, Series B, due 2012 in a registered offering of the Issuer, and the
guarantees thereof by certain of the Issuer's subsidiaries that may be offered
from time to time subsequent to the Issue Date (the "ADDITIONAL SECURITIES") and
(iii) if and when issued, the Issuer's 10% Senior Subordinated Notes, Series B,
due 2012 and the guarantees thereof by certain of the Issuer's subsidiaries that
may be issued from time to time in exchange for Initial Securities or any
Additional Securities in an offer registered under the Securities Act as
provided in a Registration Rights Agreement (as hereinafter defined, the
"EXCHANGE SECURITIES," and together with the Initial Securities and Additional
Securities, the "SECURITIES").
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
Set forth below are certain defined terms used in this Indenture.
"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 or became a Restricted Subsidiary of
such specified Person, including Indebtedness incurred in connection with,
or in contemplation of, such other Person merging with or into, or
becoming a Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by an existing Lien encumbering any asset
acquired by such specified Person.
"ADDITIONAL INTEREST" has the meaning set forth in the Registration
Rights Agreement.
"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"
(including, with correlative meanings, the terms "CONTROLLING," "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"AMEND" means amend, modify, supplement, restate or amend and
restate, including successively; and "AMENDING" and "AMENDED" have correlative
meanings.
"ASSET" means any asset or property, whether real, personal or
other, tangible or intangible.
"ASSET SALE" means (i) the sale, conveyance, transfer or other
disposition (whether in a single transaction or a series of related
transactions) of property or assets (including by way of a sale and leaseback)
of the Issuer or any Restricted Subsidiary (each referred to in this definition
as a "DISPOSITION") or (ii) the issuance or sale of Equity Interests of any
Restricted Subsidiary (whether in a single transaction or a series of related
transactions) (other than directors' qualifying shares and shares issued to
foreign nationals under applicable law), in each case, other than:
(1) a disposition of Cash Equivalents or obsolete or worn out
property or equipment in the ordinary course of business or inventory (or
other assets) held for sale in the ordinary course of business and
dispositions of property no longer used or useful in the conduct of
business of the Issuer and its Restricted Subsidiaries;
(2) the disposition of all or substantially all of the assets of
the Issuer and its Restricted Subsidiaries, taken as a whole, in a manner
permitted pursuant to Section 5.01 or any disposition that constitutes a
Change of Control pursuant to this Indenture;
(3) the granting of a Lien permitted by Section 4.12;
(4) for purposes of Section 4.13 only, the making of a Permitted
Investment (other than a Permitted Investment to the extent such
transaction results in the receipt of cash or Cash Equivalents by the
Issuer or its Restricted Subsidiaries) or a disposition subject to Section
4.11;
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(5) any disposition of assets or issuance or sale of Equity
Interests of any Restricted Subsidiary in any transaction or series of
related transactions with an aggregate fair market value of less than $2.5
million;
(6) any disposition of property or assets or issuance of
securities by a Restricted Subsidiary to the Issuer or by the Issuer or a
Restricted Subsidiary to another Restricted Subsidiary;
(7) the lease, assignment, sublease, license or sublicense of any
real or personal property in the ordinary course of business;
(8) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary (with the exception of
Investments in Unrestricted Subsidiaries acquired pursuant to clauses (10)
or (16) of the definition of "Permitted Investments" or clause (7) of
Section 4.11(b));
(9) foreclosures on assets;
(10) disposition of an account receivable in connection with the
collection or compromise thereof; and
(11) the issuance by a Restricted Subsidiary of Preferred Stock
that is permitted by Section 4.10.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar Federal,
state or foreign 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" will 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 upon the occurrence of a subsequent
condition. 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;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and
(3) with respect to any other Person, the board or committee of
such Person serving a similar function.
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"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors (or a duly authorized
committee thereof) of such Person and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"BUSINESS DAY" means any day other than a Saturday, Sunday or any
other day on which banking institutions in the City of New York are required or
authorized by law or other governmental action to be closed.
"CAPITAL STOCK" means:
(1) in the case of a corporation, capital stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); 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.
"CAPITALIZED 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 such time be required to be capitalized and reflected as a
liability on a balance sheet (excluding the footnotes thereto) in accordance
with GAAP.
"CASH CONTRIBUTION AMOUNT" means the aggregate amount of cash
contributions made to the capital of the Issuer or any Guarantor described in
the definition of "Contribution Indebtedness."
"CASH EQUIVALENTS" means:
(1) U.S. dollars, or, in the case of any Foreign Subsidiary, such
local currencies held by it from time to time in the ordinary course of
business;
(2) securities issued or directly and fully and unconditionally
guaranteed or insured by the government or any agency or instrumentality
of the United States or any member nation of the European Union having
maturities of not more than 12 months from the date of acquisition;
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(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of 12 months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding 12 months
and overnight bank deposits, in each case, with any lender party to the
Credit Agreement or with any commercial bank having capital and surplus in
excess of $500,000,000;
(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;
(5) commercial paper maturing within 12 months after the date of
acquisition and having a rating of at least A-1 from ▇▇▇▇▇'▇ or P-1 from
S & P;
(6) readily marketable direct obligations issued by any state of
the United States or any political subdivision thereof having one of the
two highest rating categories obtainable from either ▇▇▇▇▇'▇ or S&P with
maturities of 12 months or less from the date of acquisition;
(7) instruments equivalent to those referred to in clauses (1) to
(6) above denominated in Euros or any other foreign currency comparable in
credit quality and tenor to those referred to above and customarily used
by corporations for cash management purposes in any jurisdiction outside
the United States to the extent reasonably required in connection with any
business conducted by any Restricted Subsidiary organized in such
jurisdiction; and
(8) investment in funds which invest substantially all of their
assets in Cash Equivalents of the kinds described in clauses (1) through
(7) of this definition.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a
series of related transactions, of all or substantially all of the assets
of the Issuer and its Subsidiaries, taken as a whole, to any Person other
than one or more Permitted Holders;
(2) the Issuer becomes aware of (by way of a report or any other
filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written
notice or otherwise) the acquisition by any Person or group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or
any successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than one or more Permitted
Holders, in a single transaction or in a related series of transactions,
by way of merger, consolidation or other business combination or purchase
of beneficial ownership (within the meaning of Rule 13d-3 under the
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Exchange Act, or any successor provision), directly or indirectly, of 50%
or more of the total voting power of the Voting Stock of the Issuer or any
of its direct or indirect parent corporations; or
(3) (A) prior to the first public offering of common stock of
either Holdco or the Issuer, the first day on which the Board of Directors
of Holdco or the Issuer shall cease to consist of a majority of directors
who (i) were members of the Board of Directors of Holdco or the Issuer on
the Issue Date or (ii) were either (x) nominated for election by the Board
of Directors of Holdco or the Issuer, a majority of whom were directors on
the Issue Date or whose election or nomination for election was previously
approved by a majority of such directors or who were designated or
appointed pursuant to clause (y) below, or (y) designated or appointed by
a Permitted Holder (each of the directors selected pursuant to clauses
(A)(i) and (A)(ii), "CONTINUING DIRECTORS") and (B) after the first public
offering of common stock of either Holdco or the Issuer, (i) if such
public offering is of Holdco common stock, the first day on which a
majority of the members of the Board of Directors of Holdco are not
Continuing Directors or (ii) if such public offering is of the Issuer's
common stock, the first day on which a majority of the members of the
Board of Directors of the Issuer are not Continuing Directors.
"CODE" means the United States Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect on the
Issue Date, and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"COMMISSION" means the Securities and Exchange Commission.
"CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE" means, with
respect to any Person for any period, the total amount of depreciation and
amortization expense, including the amortization of deferred financing fees and
the amortization of capitalized software costs, and other noncash charges
(excluding any noncash item that represents an accrual or reserve for a cash
expenditure for a future period), of such Person and its Restricted Subsidiaries
for such period on a consolidated basis and otherwise determined in accordance
with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person
for any period, the sum, without duplication, of: (a) consolidated interest
expense of such Person and its Restricted Subsidiaries for such period
(including amortization of original issue discount, noncash interest payments
(other than imputed interest as a result of purchase accounting), the interest
component of Capitalized Lease Obligations, net payments (if any) pursuant to
interest rate Hedging Obligations, but excluding amortization of deferred
financing fees or expensing of any bridge or other financing fees relating to
the Specified Financings) and
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(b) consolidated capitalized interest of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, less (c) interest income
actually received in cash for such period.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and otherwise determined
in accordance with GAAP; provided, however, that
(1) any net after-tax extraordinary, unusual or nonrecurring
gains, losses or expenses (including, without limitation, expenses related to
the Transactions, severance, relocation, facilities consolidation, retention
bonuses and other restructuring costs) shall be excluded;
(2) the Net Income for such period shall not include the
cumulative effect of a change in accounting principle(s);
(3) any net after-tax gains or losses attributable to asset
dispositions other than in the ordinary course of business (as determined in
good faith by the Board of Directors of the Issuer) shall be excluded;
(4) the Net Income for such period of any Person that is not a
Subsidiary, or that is an Unrestricted Subsidiary, or that is accounted for by
the equity method of accounting, shall be excluded; provided that, to the extent
not already included, Consolidated Net Income of the Issuer shall be increased
by the amount of dividends or distributions or other payments that are actually
paid in cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such period;
(5) the Net Income for such period of any Restricted Subsidiary
(other than a Guarantor) shall be excluded to the extent the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
its Net Income is not permitted at the date of determination without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
by the 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, unless such restriction with
respect to the payment of dividends or similar distributions has been legally
waived; provided that Consolidated Net Income of such Person shall be increased
by the amount of dividends or distributions or other payments that are actually
paid in cash (or to the extent converted into cash) to such Person or a
Restricted Subsidiary thereof (subject to the provisions of this clause (5)) in
respect of such period, to the extent not already included therein, and provided
further, that such Restricted Subsidiary may agree to restrict its ability to
declare dividends or similar
-7-
distributions without excluding the net income of such Restricted
Subsidiary from Consolidated Net Income if (a) the agreement that
restricts such ability relates to Permitted Debt described in clause (18)
of that definition, (b) the proceeds thereof are used, directly or
indirectly through intercompany transfers, to permanently repay Senior
Debt, Guarantor Senior Debt or the Securities, and (c) the net income of
such Restricted Subsidiary, together with the net income of each other
Restricted Subsidiary subject to a similar restriction, does not exceed
10% of Consolidated Net Income for the most recent four fiscal quarters on
a pro forma basis;
(6) any noncash impairment charges resulting from the application of
Statements of Financial Accounting Standards No. 142 and No. 144 and the
amortization of intangibles arising pursuant to Statement of Financial
Accounting Standards No. 141 shall be excluded;
(7) noncash compensation charges, including any such charges arising
from stock options, restricted stock grants or other equity-incentive
programs shall be excluded;
(8) any net after-tax gains or losses attributable to the early
extinguishment of Indebtedness shall be excluded;
(9) inventory purchase accounting adjustments and amortization,
impairment and other charges (including the write-off of in-process
research and development) resulting from other purchase accounting
adjustments with respect to the Transactions or any other acquisition
transaction shall be excluded;
(10) the deferred revenue eliminated as a consequence of the
application of purchase accounting adjustments due to the Transactions
shall be included for the fiscal periods that such revenue would otherwise
have been recognized;
(11) noncash income or charges resulting from ▇▇▇▇-to-market
accounting under Financial Accounting Standard No. 52 relating to
Indebtedness denominated in foreign currencies shall be excluded;
(12) the effect of a change in the practice by the Issuer with
respect to Statement of Financial Accounting Standard No. 86, "Accounting
for the Costs of Computer Software to be Sold, Leased or Otherwise
Marketed" shall be excluded; and
(13) unrealized gains and losses from Hedging Obligations used to
offset foreign exchange currency balance sheet exposures shall be
excluded.
Notwithstanding the foregoing, for the purpose of Section 4.11 only
(other than clause (3)(d) of subsection (a) thereof), there),shall be excluded
from Consolidated Net Income
-8-
any income arising from any sale or other disposition of Restricted Investments
made by the Issuer and the Restricted Subsidiaries, any repurchases and
redemptions of Restricted Investments made by the Issuer and the Restricted
Subsidiaries, any repayments of loans and advances which constitute Restricted
Investments by the Issuer and any Restricted Subsidiary, any sale of the stock
of an Unrestricted Subsidiary or any distribution or dividend from an
Unrestricted Subsidiary, in each case only to the extent such amounts increase
the amount of Restricted Payments permitted under clause (3)(d) of Section
4.11(a).
"CONTINGENT OBLIGATIONS" means, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness ("PRIMARY OBLIGATIONS") of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation or
(B) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, or (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation against loss in respect
thereof.
"CONTRIBUTION INDEBTEDNESS" means Indebtedness of the Issuer or any
Guarantor in an aggregate principal amount not greater than twice the aggregate
amount of cash contributions (other than Excluded Contributions and amounts
applied to make a Restricted Payment in accordance with clause (2) of Section
4.11(b)) made to the capital of the Issuer or such Guarantor after the Issue
Date; provided that such Contribution Indebtedness:
(1) if the aggregate principal amount of such Contribution
Indebtedness is greater than one times such cash contributions to the
capital of the Issuer or such Guarantor, as applicable, the amount of such
excess shall be (A) (x) Subordinated Indebtedness (other than Secured
Indebtedness) or (y) Indebtedness that ranks pari passu with the
Securities (other than Secured Indebtedness) and (B) Indebtedness with a
Stated Maturity later than the Stated Maturity of the Securities, and
(2) (a) is incurred within 180 days after the making of such cash
contributions and (b) is so designated as Contribution Indebtedness
pursuant to an Officers' Certificate on the date of the incurrence
thereof.
"CORPORATE TRUST OFFICE" means the corporate trust office of the
Trustee located at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration, or such other office, designated by
the Trustee by written notice to the Issuer, at which at any particular time its
corporate trust business shall be administered.
-9-
"CREDIT AGREEMENT" means that certain Credit Agreement, dated as of
May 27, 2004, by and among the Issuer, UGS Holdings, Inc., the other borrowers
from time to time party thereto, including certain Foreign Subsidiaries, ▇.▇.
▇▇▇▇▇▇ Securities Inc. and Citigroup Global Markets Inc., as Joint Lead
Arrangers and Joint Bookrunners, Citicorp North America, Inc., as Syndication
Agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and ▇▇▇▇▇ Fargo Foothill, LLC, as
Co-Documentation Agents, and JPMorgan Chase Bank, as Administrative Agent, and
the lenders party thereto from time to time, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, restated, supplemented,
modified, renewed, increased, refunded, replaced or refinanced from time to time
in one or more agreements or indentures (in each case with the same or new
lenders or institutional investors), including any agreement extending the
maturity thereof or otherwise restructuring all or any portion of the
Indebtedness thereunder or increasing the amount loaned or issued thereunder or
altering the maturity thereof.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"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.
"DEPOSITARY" shall mean The Depository Trust Company, New York, New
York, or a successor thereto registered under the Exchange Act or other
applicable statute or regulation.
"DESIGNATED NONCASH CONSIDERATION" means the fair market value of
noncash consideration received by the Issuer or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officers' Certificate setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale, redemption or payment of, on or
with respect to such Designated Noncash Consideration.
"DESIGNATED PREFERRED STOCK" means Preferred Stock of the Issuer or
any direct or indirect parent company of the Issuer (other than Disqualified
Stock) that is issued for cash (other than to the Issuer or any of its
Subsidiaries or an employee stock ownership plan or trust established by the
Issuer or any of its Subsidiaries) and is so designated as Designated Preferred
Stock, pursuant to an Officers' Certificate, on the issuance date thereof, the
cash proceeds of which are excluded from the calculation set forth in clause (3)
of Section 4.11(a). The preferred stock issued by UGS Capital Corp. II in
connection with the Transactions shall not be deemed Designated Preferred Stock.
-10-
"DESIGNATED SENIOR DEBT" means:
(1) any Indebtedness outstanding under the Credit Agreement; and
(2) any other Senior Debt permitted under this Indenture the
principal amount of which is $25.0 million or more and that has been
designated by the Issuer in the instrument evidencing that Senior Debt as
"Designated Senior Debt."
"DISQUALIFIED STOCK" means, with respect to any Person, any Capital
Stock of such Person which, by its terms (or by the terms of any security into
which it is convertible or for which it is putable or exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, or is convertible or exchangeable for
Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible
or exchangeable solely at the option of the Issuer or a Restricted Subsidiary)
in each case prior to the date 91 days after the earlier of the final maturity
date of the Securities or the date the Securities are no longer outstanding;
provided, however, that (x) if such Capital Stock is issued to any plan for the
benefit of employees of Holdco or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock solely
because it may be required to be repurchased by Holdco or its Subsidiaries in
order to satisfy applicable statutory or regulatory obligations and (y) such
Capital Stock shall not constitute Disqualified Stock if such Capital Stock
matures or is mandatorily redeemable or is redeemable at the option of the
holders thereof as a result of a change of control or asset sale if the terms of
such Capital Stock (and all such securities into which it is convertible or for
which it is exchangeable) provide that the Issuer may not repurchase or redeem
any such Capital Stock (and all securities into which it is convertible or for
which it is exchangeable) pursuant to such provision prior to compliance by the
Issuer with Section 4.09 and Section 4.13 and such repurchase or redemption
complies with Section 4.11.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the Issuer that was
formed under the laws of the United States, any state of the United States, the
District of Columbia or any territory of the United States.
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus, without
duplication,
(1) provision for taxes based on income or profits, plus franchise
or similar taxes of such Person for such period deducted in computing
Consolidated Net Income, plus
(2) Consolidated Interest Expense of such Person for such period to
the extent the same was deducted in calculating such Consolidated Net
Income, plus
-11-
(3) Consolidated Depreciation and Amortization Expense of such
Person for such period to the extent such depreciation and amortization
were deducted in computing Consolidated Net Income, plus
(4) any expenses or charges related to any Equity Offering,
Permitted Investment, acquisition, recapitalization or Indebtedness
permitted to be incurred under this Indenture (in each case whether or not
consummated) or to the Transactions and, in each case, deducted in such
period in computing Consolidated Net Income, plus
(5) without duplication, any other noncash charges (including any
impairment charges) reducing Consolidated Net Income for such period
(excluding any such charge that represents an accrual or reserve for a
cash expenditure for a future period), plus
(6) the deferred revenue eliminated as a consequence of the
application of purchase accounting adjustments as a consequence of
acquisitions (after the Issue Date) shall be included for the fiscal
periods that such revenue would otherwise have been recognized, plus
(7) the amount of management, monitoring, consulting and advisory
fees and related expenses paid to the Sponsors and their Affiliates (other
than portfolio companies) (or any accruals relating to such fees and
related expenses) during such period; provided that such amount shall not
exceed $3.0 million in any four-quarter period, less
(8) without duplication, noncash items increasing Consolidated Net
Income of such Person for such period (excluding any items which represent
the reversal of any accrual of, or reserve for, anticipated cash charges
or asset valuation adjustments made in any prior period).
"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 any public or private sale of common stock
or Preferred Stock of the Issuer or any of its direct or indirect parent
corporations (excluding Disqualified Stock), other than (i) public offerings
with respect to common stock of the Issuer or of any direct or indirect parent
corporation of the Issuer registered on Form S-4 or Form S-8, (ii) any such
public or private sale that constitutes an Excluded Contribution or (iii) an
issuance to any Subsidiary.
-12-
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in the Registration Rights Agreement.
"EXCLUDED CONTRIBUTION" means net cash proceeds, marketable
securities or Qualified Proceeds, in each case received by the Issuer and its
Restricted Subsidiaries from:
(1) contributions to its common equity capital; and
(2) the sale (other than to a Subsidiary or to any management equity
plan or stock option plan or any other management or employee benefit plan or
agreement of the Issuer or any Subsidiary) of Capital Stock (other than
Disqualified Stock and Designated Preferred Stock),
in each case designated as Excluded Contributions pursuant to an Officers'
Certificate on the date such capital contributions are made or the date such
Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in clause (3) of Section 4.11(a).
"EXISTING INDEBTEDNESS" means Indebtedness of the Issuer and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture.
"FIXED CHARGE COVERAGE RATIO" means, with respect to any Person for
any period consisting of such Person's and its Restricted Subsidiaries' most
recently ended four fiscal quarters for which internal financial statements are
available, the ratio of EBITDA of such Person for such period to the Fixed
Charges of such Person for such period. In the event that the Issuer or any
Restricted Subsidiary incurs, assumes, guarantees or repays any Indebtedness or
issues or redeems Disqualified Stock or Preferred Stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "CALCULATION DATE"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or repayment of Indebtedness, or such issuance or
redemption of Disqualified Stock or Preferred Stock, as if the same had occurred
at the beginning of the applicable four-quarter period. For purposes of making
the computation referred to above, Investments, acquisitions, dispositions,
mergers or consolidations (as determined in accordance with GAAP) that have been
made by the Issuer or any Restricted Subsidiary during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Calculation Date shall be calculated on a pro forma
basis assuming that all such Investments, acquisitions, dispositions, mergers or
consolidations (and the change in any associated Fixed Charge obligations and
the change in EBITDA resulting therefrom) had occurred on the first day of the
four-quarter
-13-
reference period. If since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Issuer or any Restricted Subsidiary since the beginning of such period) shall
have made any Investment, acquisition, disposition, merger or consolidation that
would have required adjustment pursuant to this definition, then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect thereto for
such period as if such Investment, acquisition, disposition, merger or
consolidation had occurred at the beginning of the applicable four-quarter
period. For purposes of this definition, whenever pro forma effect is to be
given to an Investment, acquisition, disposition, merger or consolidation
(including the Transactions) and the amount of income or earnings relating
thereto, the pro forma calculations shall be determined in good faith by a
responsible financial or accounting Officer of the Issuer and shall comply with
the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission,
except that such pro forma calculations may include operating expense reductions
for such period resulting from the transaction that is being given pro forma
effect that have been realized or for which the steps necessary for realization
have been taken or are reasonably expected to be taken within six months
following any such transaction, including, but not limited to, the execution or
termination of any contracts, reduction of costs related to administrative
functions, the termination of any personnel or the closing (or approval by the
Board of Directors of the Issuer of any closing) of any facility, as applicable,
provided that, in either case, such adjustments are set forth in an Officers'
Certificate signed by the Issuer's chief financial officer and another Officer
which states (i) the amount of such adjustment or adjustments, (ii) that such
adjustment or adjustments are based on the reasonable good faith beliefs of the
Officers executing such Officers' Certificate at the time of such execution and
(iii) that any related incurrence of Indebtedness is permitted pursuant to this
Indenture. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall 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 Obligations applicable to
such Indebtedness if the related hedge has a remaining term in excess of twelve
months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible financial or accounting
officer of the Issuer to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rate, shall be deemed to have been based upon the rate actually chosen,
or, if none, then based upon such optional rate chosen as the Issuer may
designate.
"FIXED CHARGES" means, with respect to any Person for any period,
the sum of, without duplication, (a) Consolidated Interest Expense (excluding
all noncash interest expense and amortization/accretion of original issue
discount, in each case, in connection with the Specified Financings (including
any original issue discount created by fair value
-14-
adjustments to the Issuer's Existing Indebtedness as a result of purchase
accounting)) of such Person for such period, (b) all cash dividends paid,
accrued and/or scheduled to be paid or accrued during such period (excluding
items eliminated in consolidation) on any series of Preferred Stock of such
Person and (c) all cash dividends paid, accrued and/or scheduled to be paid or
accrued during such period (excluding items eliminated in consolidation) on any
series of Disqualified Stock.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Issuer that is not
a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States in effect on the date of this Indenture. For purposes of this Indenture,
the term "CONSOLIDATED" with respect to any Person means such Person
consolidated with its Restricted Subsidiaries and does not include any
Unrestricted Subsidiary.
"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, through letters of
credit or reimbursement agreements in respect thereof, of all or any part of any
Indebtedness or other obligations.
"GUARANTEE" means any guarantee of the obligations of the Issuer
under this Indenture and the Securities by a Guarantor in accordance with the
provisions of this Indenture. When used as a verb, "GUARANTEE" shall have a
corresponding meaning.
"GUARANTOR" means any Person that incurs a Guarantee of the
Securities; provided that upon the release and discharge of such Person from its
Guarantee in accordance with this Indenture, such Person shall cease to be a
Guarantor.
"GUARANTOR SENIOR DEBT" means, with respect to any Guarantor, the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed or allowable claim under applicable law) on any Indebtedness of such
Guarantor, whether outstanding on the Issue Date or thereafter created, incurred
or assumed, unless, in the case of any particular obligation, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such obligation shall not be senior in right of payment
to the Guarantee of such Guarantor. Without limiting the generality of the
foregoing, "Guarantor Senior Debt" shall also include the principal of, premium,
if any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed or allowable claim
under applicable law) on, and all other amounts owing in respect of (including
guarantees of the foregoing obligations):
-15-
(1) all monetary obligations of every nature of such Guarantor
under, or with respect to, the Credit Agreement, including, without
limitation, obligations to pay principal, premium and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities (and guarantees thereof); and
(2) all Hedging Obligations (and guarantees thereof),
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall not
include:
(1) any Indebtedness of such Guarantor to a Subsidiary of such
Guarantor;
(2) Indebtedness to, or guaranteed on behalf of, any director,
officer or employee of such Guarantor or any Subsidiary of such Guarantor
(including, without limitation, amounts owed for compensation), other than
Indebtedness under the Credit Agreement;
(3) trade payables;
(4) Indebtedness represented by Capital Stock;
(5) any liability for federal, state, local or other taxes owed or
owing by such Guarantor;
(6) that portion of any Indebtedness incurred in violation of
Section 4.10;
(7) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to the Issuer; and
(8) any Indebtedness which is, by its express terms, subordinated in
right of payment to any other Indebtedness of such Guarantor.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under:
(1) currency exchange, interest rate or commodity swap agreements,
currency exchange, interest rate or commodity cap agreements and currency
exchange, interest rate or commodity collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange, interest rates or commodity
prices.
-16-
"HOLDCO" means any of UGS Capital Corp. (formerly BSW Holdings,
Inc.), a Delaware corporation, UGS Capital Corp. II, a Delaware corporation, and
UGS Holdings, Inc., a Delaware corporation and any other direct or indirect
parent of the Issuer organized at the direction of the Permitted Holders
(without giving effect to the inclusion of Affiliates in such definition of
Permitted Holders), in each case so long as such Person is a direct or indirect
parent corporation of the Issuer.
"HOLDER" or "SECURITYHOLDER" means the registered holder of any
Security.
"INCUR" means to directly or indirectly create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to any Indebtedness (including Acquired
Debt) and "INCURRENCE" shall have a correlative meaning.
"INDEBTEDNESS" means, with respect to any Person,
(a) any indebtedness (including principal and premium) of such
Person, whether or not contingent,
(i) in respect of borrowed money,
(ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or, without double counting,
reimbursement agreements in respect thereof),
(iii) representing the balance deferred and unpaid of the
purchase price of any property (including Capitalized Lease
Obligations), except any such balance that constitutes a trade
payable or similar obligation to a trade creditor, in each case
accrued in the ordinary course of business, or
(iv) representing any Hedging Obligations,
if and to the extent that any of the foregoing Indebtedness (other than
letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet (excluding the footnotes thereto) of such Person
prepared in accordance with GAAP,
(b) Disqualified Stock of such Person,
(c) to the extent not otherwise included, any obligation by such
Person to be liable for, or to pay, as obligor, guarantor or otherwise,
the Indebtedness of another Person (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
and
-17-
(d) to the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person (whether or not
such Indebtedness is assumed by such Person);
provided, however, that Contingent Obligations incurred in the ordinary course
of business and not in respect of borrowed money and Tax Timing Advances shall
each be deemed not to constitute Indebtedness.
"INDENTURE" means this Indenture, as amended, restated or
supplemented from time to time in accordance with the terms hereof.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm or consultant to Persons engaged in a Permitted Business
of nationally recognized standing that is, in the good faith judgment of the
Issuer, qualified to perform the task for which it has been engaged.
"INITIAL PURCHASERS" means Citigroup Global Markets Inc., ▇.▇.
▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and such other
initial purchasers party to the Securities Purchase Agreement entered into in
connection with the offer and sale of the Securities.
"INTEREST" means, with respect to the Securities, interest and any
Additional Interest on the Securities.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment
of interest on the Securities.
"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 accounts receivable, trade credit, advances to
customers, commission, travel and similar advances to officers and employees, in
each case made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes) of such Person
in the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property. If the
Issuer or any Subsidiary of the Issuer sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Issuer such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Issuer, the Issuer will be deemed to have made an Investment
on the date of any such sale or disposition equal to the fair market value of
the Equity Interests of such Subsidiary not sold or disposed of in an amount
determined as provided in Section 4.11(c)
-18-
and such Investment in the Equity Interest of such former Subsidiary shall not
be considered an Investment in existence on the Issue Date.
For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.11, (i) "Investments" shall include the portion (proportionate to the
Issuer's equity interest in such Subsidiary) of the fair market value of the net
assets of a Subsidiary of the Issuer at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer shall be
deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (x) the Issuer's "Investment" in
such Subsidiary at the time of such redesignation less (y) the portion
(proportionate to the Issuer's equity interest in such Subsidiary) of the fair
market value of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Issuer.
"ISSUE DATE" means May 27, 2004.
"LEVERAGE RATIO" means the ratio of: (a) the Indebtedness of the
Issuer and its Restricted Subsidiaries, as of the end of the most recently ended
full fiscal quarter, less the amount of cash and Cash Equivalents that would be
stated on the consolidated balance sheet of the Issuer and held by the Issuer or
its Restricted Subsidiaries as of such date of determination, as determined in
accordance with GAAP to (b) the Issuer's EBITDA for the most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such event for which calculation is
being made shall occur (the "Measurement Period"); provided, however, that (i)
in making such computation, Indebtedness shall include the average daily balance
outstanding under any revolving credit facility during the most recently ended
four fiscal quarters; and (ii) if the Issuer or any of its Restricted
Subsidiaries consummates any Investment, acquisition, disposition, merger or
consolidation subsequent to the commencement of the Measurement Period but prior
to the event for which the calculation of the Leverage Ratio is made, then the
Leverage Ratio shall be calculated giving pro forma effect to such Investment,
acquisition, disposition, merger or consolidation, as if the same had occurred
at the beginning of the applicable period. In the event that the Issuer or any
Restricted Subsidiary incurs, assumes, guarantees or repays any Indebtedness or
issues or redeems Disqualified Stock or Preferred Stock subsequent to the
commencement of the Measurement Period for which the Leverage Ratio is being
calculated but prior to the event for which the calculation of the Leverage
Ratio is made, then the Leverage Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, guarantee or repayment of Indebtedness,
or such issuance or redemption of Disqualified Stock or Preferred Stock, as if
the same had occurred at the beginning of the applicable four-quarter period.
Any pro forma calculations necessary
-19-
pursuant to this "Leverage Ratio" shall be made in accordance with the
provisions set forth in the second paragraph of the definition of "Fixed Charge
Coverage Ratio."
"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;
provided that in no event shall an operating lease be deemed to constitute a
Lien.
"MANAGEMENT AGREEMENT" means the Management Agreement by and among
the Issuer, Holdco and the Sponsors and/or their Affiliates as in effect on the
Issue Date.
"MATURITY DATE" means June 1, 2012.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NET INCOME" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends or accretion of any Preferred
Stock.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Issuer or any Restricted Subsidiary in respect of any Asset Sale, in each case
net of, without limitation, legal, accounting and investment banking fees, and
brokerage and sales commissions, any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
repayment of Indebtedness that is secured by the property or assets that are the
subject of such Asset Sale and any deduction of appropriate amounts to be
provided by the Issuer as a reserve in accordance with GAAP against any
liabilities associated with the asset disposed of in such transaction and
retained by the Issuer after such sale or other disposition thereof, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction; provided that if the Leverage
Ratio would not have exceeded 3.75 to 1.00 (calculated on the assumption that
any such Solid Edge Excess Proceeds are not applied to repay Indebtedness),
immediately after giving effect to any sale or other transfer relating to Solid
Edge or any Investment received by the Issuer or its Restricted Subsidiaries in
exchange for the contribution, sale or other transfer of Solid Edge in a
transaction permitted by the applicable provisions of this Indenture, then the
Solid Edge Excess Proceeds shall be excluded from the definition of Net
Proceeds.
-20-
"NON-GUARANTOR RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary that is not a Guarantor.
"NON-U.S. PERSON" has the meaning assigned to such term in
Regulation S.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit), damages and other liabilities,
and guarantees of payment of such principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities, payable under
the documentation governing any Indebtedness (including, without limitation,
interest after the commencement of any bankruptcy proceeding at the rate of
interest specified in the applicable Indebtedness, whether or not a claim for
such interest would be allowed in such proceeding).
"OFFERING MEMORANDUM" means the offering memorandum of the Issuer
dated May 19, 2004 relating to the Securities.
"OFFICER" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Executive Vice
President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Issuer.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Issuer by two Officers of the Issuer, one of whom is the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Issuer, that meets the requirements set forth in this
Indenture.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer, a Guarantor or the Trustee.
"PERMITTED ASSET SWAP" means any transfer of property or assets by
the Issuer or any of its Restricted Subsidiaries in which at least 90% of the
consideration received by the transferor consists of properties or assets (other
than cash and Investments) that will be used in a Permitted Business; provided
that the aggregate fair market value of the property or assets being transferred
by the Issuer or such Restricted Subsidiary is not greater than the aggregate
fair market value of the property or assets received by the Issuer or such
Restricted Subsidiary in such exchange (provided, however, that in the event
such aggregate fair market value of the property or assets being transferred or
received by the Issuer is (x) less than $25.0 million, such determination shall
be made in good faith by the Board of Directors of the Issuer and (y) greater
than or equal to $25.0 million, such determination shall be made by an
Independent Financial Advisor).
-21-
"PERMITTED BUSINESS" means the business engaged in by the Issuer on
the Issue Date and any services, activities or businesses incidental or directly
related or similar to, any line of business engaged in by the Issuer on the
Issue Date or any business activity that is a reasonable extension, development
or expansion thereof or ancillary thereto.
"PERMITTED HOLDERS" means each of ▇▇▇▇ Capital Integral Investors,
LLC (and its members), ▇▇▇▇ Capital VII Coinvestment Fund, L.P., BCIP TCV, LLC,
Silver Lake Partners, L.P., Silver Lake Investors, L.P., Silver Lake Technology
Investors, L.L.C., Integral Capital Partners VI, L.P., Warburg Pincus Private
Equity VIII, L.P. and Warburg Pincus International Partners, L.P., and their
Affiliates, but not including, however, any portfolio companies of any of the
Sponsors.
"PERMITTED INVESTMENTS" means
(1) any Investment by the Issuer in any Restricted Subsidiary or by
a Restricted Subsidiary in another Restricted Subsidiary;
(2) any Investment in cash and Cash Equivalents;
(3) any Investment by the Issuer or any Restricted Subsidiary of the
Issuer in a Person that is engaged in a Permitted Business if as a result
of such Investment (A) such Person becomes a Restricted Subsidiary 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, the Issuer or a
Restricted Subsidiary;
(4) any Investment in securities or other assets not constituting
cash or Cash Equivalents and received in connection with an Asset Sale
made pursuant to Section 4.13 or any other disposition of assets not
constituting an Asset Sale;
(5) any Investment existing on the Issue Date;
(6) loans and advances to employees and any guarantees not in excess
of $10.0 million in the aggregate outstanding at any one time; provided
that loans that are forgiven shall continue to be deemed outstanding;
(7) any Investment acquired by the Issuer or any Restricted
Subsidiary (A) in exchange for any other Investment or accounts receivable
held by the Issuer or any such Restricted Subsidiary in connection with or
as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (B) as a
result of a foreclosure by the Issuer or any Restricted Subsidiary with
respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;
-22-
(8) Hedging Obligations permitted under clause (9) of the definition
of "Permitted Debt" in Section 4.10(b);
(9) loans and advances to officers, directors and employees for
business-related travel expenses, moving expenses and other similar
expenses, in each case incurred in the ordinary course of business;
(10) any Investment by the Issuer or a Restricted Subsidiary in a
Permitted Business having an aggregate fair market value, taken together
with all other Investments made pursuant to this clause (10) that are at
that time outstanding (after giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale received by the Issuer
and/or its Restricted Subsidiaries consist of cash and/or marketable
securities), not to exceed the greater of $65.0 million and 2.50% of Total
Assets (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value);
provided that the Investment basket set forth in this clause (10) may be
increased, at the election of the Issuer and its Restricted Subsidiaries,
by the amount unutilized and available to be invested pursuant to clause
(14) below;
(11) Investments the payment for which consists of Equity Interests
of the Issuer or any of its direct or indirect parent corporations
(exclusive of Disqualified Stock);
(12) guarantees (including Guarantees) of Indebtedness permitted
under Section 4.10 and performance guarantees in the ordinary course of
business;
(13) any transaction to the extent it constitutes an Investment that
is permitted and made in accordance with Section 4.14 (except transactions
described in clauses (2), (6) and (7) of Section 4.14(b));
(14) Investments by the Issuer or a Restricted Subsidiary in joint
ventures engaged in a Permitted Business having an aggregate fair market
value, taken together with all other Investments made pursuant to this
clause (14) that are at that time outstanding, not to exceed the greater
of $35.0 million and 1.5% of Total Assets (with the fair market value of
each Investment being measured at the time made and without giving effect
to subsequent changes in value), less Investments made pursuant to clause
(10) by utilizing amounts available to be invested under this clause (14);
(15) Investments consisting of licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons; and
(16) Investments in any Person received by the Issuer or its
Restricted Subsidiaries in exchange for the contribution, sale or other
transfer of Solid Edge with
-23-
the fair market value of all or any portion of Solid Edge so contributed,
sold or transferred as consideration for the Investment permitted under
this clause (16) not to exceed $70.0 million (such fair market value of
all or any portion of Solid Edge to be measured immediately prior to such
transaction by an Independent Financial Advisor).
"PERMITTED JUNIOR SECURITIES" means:
(1) Equity Interests in the Issuer or any direct or indirect parent
of the Issuer issued pursuant to a plan or reorganization or readjustment;
or
(2) unsecured debt securities of the Issuer issued pursuant to a
plan of reorganization or readjustment that are subordinated to all Senior
Debt (and any debt securities issued in exchange for Senior Debt) to
substantially the same extent as, or to a greater extent than, the
Securities are subordinated to Senior Debt under this Indenture;
provided that to the extent that any Senior Debt or Guarantor Senior Debt, as
the case may be, outstanding on the date of consummation of any such plan of
reorganization or readjustment is not paid in full in cash on such date, the
holders of any such Senior Debt or Guarantor Senior Debt not so paid in full in
cash have consented to the terms of such plan of reorganization or readjustment.
"PERMITTED LIENS" means the following types of Liens:
(1) deposits of cash or government bonds made in the ordinary course
of business to secure surety or appeal bonds to which such Person is a
party;
(2) Liens in favor of issuers of performance, surety, bid,
indemnity, warranty, release, appeal or similar bonds or with respect to
other regulatory requirements or letters of credit or bankers' acceptances
issued, and completion guarantees provided for, in each case pursuant to
the request of and for the account of such Person in the ordinary course
of its business or consistent with past practice;
(3) Liens on property or shares of stock of a Person at the time
such Person becomes a Subsidiary; provided, however, that such Liens are
not created or incurred in connection with, or in contemplation of, such
other Person becoming such a Subsidiary; provided, further, however, that
such Liens may not extend to any other property owned by the Issuer or any
Restricted Subsidiary;
(4) Liens on property at the time the Issuer or a Restricted
Subsidiary acquired the property, including any acquisition by means of a
merger or consolidation with or into the Issuer or any Restricted
Subsidiary; provided, however, that such Liens are not created or incurred
in connection with, or in contemplation of, such
-24-
acquisition; provided, further, however, that such Liens may not extend to
any other property owned by the Issuer or any Restricted Subsidiary;
(5) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Issuer or another Restricted Subsidiary permitted
to be incurred in accordance with Section 4.10;
(6) Liens securing Hedging Obligations so long as the related
Indebtedness is permitted to be incurred under this Indenture and is
secured by a Lien on the same property securing such Hedging Obligation;
(7) Liens on specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances or letters of credit issued or created for the account of such
Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(8) Liens in favor of the Issuer or any Restricted Subsidiary;
(9) Liens to secure any Indebtedness that is incurred to refinance
any Indebtedness that has been secured by a Lien existing on the Issue
Date or referred to in clauses (3), (4) and (17)(B) of this definition;
provided, however, that such Liens (x) are no less favorable to the
Holders, taken as a whole, and are not more favorable to the lienholders
with respect to such Liens than the Liens in respect of the Indebtedness
being refinanced; and (y) do not extend to or cover any property or assets
of the Issuer or any of its Restricted Subsidiaries not securing the
Indebtedness so refinanced;
(10) Liens for taxes, assessments or other governmental charges or
levies not yet delinquent, or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted or
for property taxes on property that the Issuer or one of its Subsidiaries
has determined to abandon if the sole recourse for such tax, assessment,
charge, levy or claim is to such property;
(11) judgment liens in respect of judgments that do not constitute
an Event of Default so long as such Liens are adequately bonded and any
appropriate legal proceedings that may have been duly initiated for the
review of such judgment have not been finally terminated or the period
within which such proceedings may be initiated has not expired;
(12) pledges, deposits or security under workmen's compensation,
unemployment insurance and other social security laws or regulations, or
deposits to secure the performance of tenders, contracts (other than for
the payment of Indebtedness) or leases, or deposits to secure public or
statutory obligations, or deposits as security for contested taxes or
import or customs duties or for the payment
-25-
of rent, or deposits or other security securing liabilities to insurance
carriers under insurance or self-insurance arrangements, in each case
incurred in the ordinary course of business or consistent with past
practice;
(13) Liens imposed by law, including carriers', warehousemen's,
materialmen's, repairmen's and mechanics' Liens, in each case for sums not
overdue by more than 30 days or, if more than 30 days overdue, are unfiled
and no other action has been taken to enforce such Lien or which are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted;
(14) encumbrances, ground leases, easements or reservations of, or
rights of others for, licenses, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning,
building codes or other restrictions (including, without limitation, minor
defects or irregularities in title and similar encumbrances) as to the use
of real properties or Liens incidental to the conduct of business or to
the ownership of properties that do not in the aggregate materially
adversely affect the value of said properties or materially impair their
use in the operation of the business;
(15) leases, licenses, subleases or sublicenses granted to others in
the ordinary course of business that do not (x) interfere in any material
respect with the business of the Issuer or any of its material Restricted
Subsidiaries or (y) secure any Indebtedness;
(16) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases or consignments entered into by the
Issuer and its Restricted Subsidiaries in the ordinary course of business;
(17) (A) other Liens securing Indebtedness for borrowed money with
respect to property or assets with an aggregate fair market value (valued
at the time of creation thereof) of not more than $10.0 million at any
time and (B) Liens securing Indebtedness incurred to finance the
construction, purchase or lease of, or repairs, improvements or additions
to, property of such Person; provided, however, that (x) the Lien may not
extend to any other property (except for accessions to such property)
owned by such Person or any of its Restricted Subsidiaries at the time the
Lien is incurred, (y) such Liens attach concurrently with or within 270
days after the acquisition, repair, replacement, construction or
improvement (as applicable) of the property subject to such Liens and (z)
with respect to Capitalized Lease Obligations, such Liens do not at any
time extend to or cover any assets (except for accessions to such assets)
other than the assets subject to such Capitalized Lease Obligations;
provided that individual financings of equipment provided by one lender
may be cross-collateralized to other financings of equipment provided by
such lender;
-26-
(18) Liens (i) of a collection bank arising under Section 4-210 of
the Uniform Commercial Code on items in the course of collection, (ii)
attaching to commodity trading accounts or other commodities brokerage
accounts incurred in the ordinary course of business and (iii) in favor of
a banking institution arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general
parameters customary in the banking industry;
(19) Liens encumbering reasonable customary initial deposits and
margin deposits and similar Liens attaching to commodity trading accounts
or other brokerage accounts incurred in the ordinary course of business
and not for speculative purposes;
(20) Liens that are contractual rights of set-off (i) relating to
the establishment of depository relations with banks not given in
connection with the issuance of Indebtedness, (ii) relating to pooled
deposit or sweep accounts of the Issuer or any Restricted Subsidiary to
permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Issuer and its Restricted Subsidiaries
or (iii) relating to purchase orders and other agreements entered into
with customers of the Issuer or any Restricted Subsidiary in the ordinary
course of business;
(21) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the
Issuer or any of its Restricted Subsidiaries in connection with any letter
of intent or purchase agreement permitted under this Indenture; and
(22) Liens with respect to the assets of a Non-Guarantor Restricted
Subsidiary securing Indebtedness of such Non-Guarantor Restricted
Subsidiary incurred in accordance with Section 4.10.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity.
"PREFERRED STOCK" means any Equity Interest with preferential rights
of payment of dividends upon liquidation, dissolution or winding up.
"PURCHASE AGREEMENT" means the Purchase Agreement dated March 12,
2004 between Electronic Data Systems Corporation, UGS PLM Solutions Inc. and UGS
Capital Corp., formerly known as BSW Holdings, Inc., as amended.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
-27-
"QUALIFIED PROCEEDS" means assets that are used or useful in, or
Capital Stock of any Person engaged in, a Permitted Business; provided that the
fair market value of any such assets or Capital Stock shall be determined by the
Board of Directors of the Issuer in good faith, except that in the event the
value of any such assets or Capital Stock exceeds $15.0 million, the fair market
value shall be determined by an Independent Financial Advisor.
"RECORD DATE" means the applicable Record Date specified in the
Securities; provided that if any such date is not a Business Day, the Record
Date shall be the first day immediately preceding such specified day that is a
Business Day.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Securities.
"REFINANCE" means to extend, refinance, renew, replace, defease or
refund, including successively; and "REFINANCING" and "REFINANCED" shall have
correlative meanings.
"REGISTERED EXCHANGE OFFER" shall have the meaning set forth in the
Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means (a) the Registration Rights
Agreement dated as of May 27, 2004, among the Issuer, the Guarantors and the
Initial Purchasers relating to the Securities and (b) any other similar
Registration Rights Agreement relating to Additional Securities.
"REGULATION S" means Regulation S under the Securities Act.
"REPRESENTATIVE" means the trustee, agent or representative (if any)
for an issue of Senior Debt of the Issuer; provided that if, and for so long as,
any Designated Senior Debt lacks such a representative, then the Representative
for such Designated Senior Debt shall at all times constitute the holders of a
majority in outstanding principal amount of such Designated Senior Debt.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer in the Corporate Trust Office of the Trustee to whom any corporate
trust matter is referred because of such officer's knowledge of and familiarity
with the particular subject and shall also mean any officer who shall have
direct responsibility for the administration of this Indenture.
-28-
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" means, at any time, any direct or indirect
Subsidiary of the Issuer (including any Foreign Subsidiary) that is not then an
Unrestricted Subsidiary; provided, however, that upon the occurrence of an
Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such
Subsidiary shall be included in the definition of "Restricted Subsidiary."
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"SECURITIES PURCHASE AGREEMENT" means (a) the Purchase Agreement
dated May 19, 2004, among the Issuer, the Guarantors and the Initial Purchasers
and (b) any other similar purchase agreement relating to the Additional
Securities.
"SENIOR DEBT" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed or allowable claim under applicable
law) on any Indebtedness of the Issuer, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
obligation, the instrument creating or evidencing the same or pursuant to which
the same is outstanding expressly provides that such obligation shall not be
senior in right of payment to the Securities. Without limiting the generality of
the foregoing, "Senior Debt" shall also include the principal of, premium, if
any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed or allowable claim
under applicable law) on, and all other amounts owing in respect of (including
guarantees of the foregoing obligations):
(1) all monetary obligations of every nature of the Issuer under, or
with respect to, the Credit Agreement, including, without limitation,
obligations to pay principal, premium and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and
guarantees thereof); and
(2) all Hedging Obligations (and guarantees thereof),
-29-
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Senior Debt" shall not include:
(1) any Indebtedness of the Issuer to a Subsidiary of the Issuer;
(2) Indebtedness to, or guaranteed on behalf of, any director,
officer or employee of the Issuer or any Subsidiary of the Issuer
(including, without limitation, amounts owed for compensation), other than
Indebtedness under the Credit Agreement;
(3) trade payables;
(4) Indebtedness represented by Capital Stock;
(5) any liability for federal, state, local or other taxes owed or
owing by the Issuer;
(6) that portion of any Indebtedness incurred in violation of
Section 4.10;
(7) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to the Issuer; and
(8) any Indebtedness which is, by its express terms, subordinated in
right of payment to any other Indebtedness of the Issuer.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in
the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Restricted 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 date hereof.
"SOLID EDGE" means the business of the Issuer and its Restricted
Subsidiaries constituting the "Solid Edge" division or line of business,
substantially as conducted on the Issue Date and including any Person to which
such business may be contributed.
"SOLID EDGE EXCESS PROCEEDS" means the aggregate cash proceeds, in
respect of an Asset Sale relating to Solid Edge or an Asset Sale relating to any
Investment received by the Issuer or its Restricted Subsidiaries in exchange for
the sale, contribution or other transfer of Solid Edge in a transaction
permitted by the applicable provisions of this Indenture in excess of the sum of
(x) $70.0 million plus (y) all legal, accounting and investment banking fees
(including, without limitation, any fees, commissions or other payments to the
Sponsors)
-30-
and brokerage and sales commissions, taxes, paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), repayments of Indebtedness that is secured by the
property that is the subject of such Asset Sale and any deduction of appropriate
amounts to be provided by the Issuer as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such
transaction and retained by the Issuer after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.
"SPECIFIED FINANCINGS" means the financings included in the
Transactions and the offering of the Initial Securities.
"SPONSORS" means ▇▇▇▇ Capital Partners, LLC, Silver Lake Technology
Management L.L.C. and Warburg Pincus LLC.
"STATED MATURITY" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such 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.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement by and
among the Issuer, the Permitted Holders and the other stockholders party thereto
in effect on the Issue Date.
"SUBORDINATED INDEBTEDNESS" means (a) with respect to the Issuer,
any Indebtedness of the Issuer that is by its terms subordinated in right of
payment to the Securities and (b) with respect to any Guarantor of the
Securities, any Indebtedness of such Guarantor that is by its terms subordinated
in right of payment to its Guarantee of the Securities.
"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) to vote in
the election of directors, managers or trustees thereof 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, joint venture, limited liability company or
similar entity of which (x) more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or
limited partnership interests, as applicable, are
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owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person or a combination thereof whether
in the form of membership, general, special or limited partnership
interests or otherwise and (y) such Person or any Wholly Owned Restricted
Subsidiary of such Person is a controlling general partner or otherwise
controls such entity.
"TAX TIMING ADVANCES" means advances to a Foreign Subsidiary of the
Issuer by Electronic Data Systems Corporation or its Affiliates in respect of
tax liabilities of such Foreign Subsidiary attributable to the deferral of
certain interest deductions in an aggregate principal amount at any one time
outstanding not to exceed $25.0 million.
"TERMINATION FEES" means the one-time payment under the Management
Agreement of a termination fee to one or more of the Sponsors and their
Affiliates (other than portfolio companies) in the event of either a Change of
Control or the completion of a registered initial public offering of the common
stock of the Issuer or Holdco
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified under
the TIA, except as otherwise provided in Section 9.04.
"TOTAL ASSETS" means, with respect to the Issuer, the total assets
of the Issuer and its Restricted Subsidiaries determined in accordance with
GAAP, as shown on its most recent balance sheet.
"TRANSACTIONS" means the transactions contemplated by (i) the
Purchase Agreement, (ii) the Credit Agreement and (iii) the offering of the
Initial Securities.
"TREASURY RATE" means, as of the applicable Redemption Date, the
yield to maturity as of such Redemption Date of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15 (519) that has become publicly
available at least two business days prior to such Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from such Redemption Date
to June 1, 2008; provided, however, that if the period from such Redemption Date
to June 1, 2008 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year will be used.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
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"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Issuer
that at the time of determination is an Unrestricted Subsidiary (as designated
by the Board of Directors of the Issuer, as provided below) and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Issuer
may designate any Subsidiary of the Issuer (including any existing Subsidiary
and any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity
Interests or Indebtedness of, or owns or holds any Lien on, any property of, the
Issuer or any Subsidiary of the Issuer (other than any Subsidiary of the
Subsidiary to be so designated), provided that (a) any Unrestricted Subsidiary
must be an entity of which shares of the Capital Stock or other equity interests
(including partnership interests) entitled to cast at least a majority of the
votes that may be cast by all shares or equity interests having ordinary voting
power for the election of directors or other governing body are owned, directly
or indirectly, by the Issuer, (b) such designation complies with Section 4.11
and (c) each of (I) the Subsidiary to be so designated and (II) its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to any Indebtedness pursuant to which the lender has recourse to any of
the assets of the Issuer or any Restricted Subsidiary. The Board of Directors
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that, immediately after giving effect to such designation, no Default
or Event of Default shall have occurred and (1) the Issuer could incur $1.00 of
additional Indebtedness pursuant to the Coverage Ratio Exception described under
Section 4.10(a), or (2) the Fixed Charge Coverage Ratio for the Issuer and its
Restricted Subsidiaries would be greater than such ratio for the Issuer and its
Restricted Subsidiaries immediately prior to such designation, in each case on a
pro forma basis taking into account such designation. Any such designation by
the Board of Directors shall be notified by the Issuer to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. GOVERNMENT SECURITIES" means securities that are
(a) direct obligations of the United States of America for the
timely payment of which its full faith and credit is pledged or
(b) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the
issuers thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such U.S. Government Securities or a specific payment of principal of or
interest on any such U.S. Government Securities held by
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such custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Securities or the specific payment of principal of or interest on the
U.S. Government Securities evidenced by such depository receipt.
"U.S. LEGAL TENDER" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"VOTING STOCK" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(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.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" is any Wholly Owned Subsidiary
that is a Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person, 100% of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares and shares issued to foreign
nationals under applicable law) shall at the time be owned by such Person or by
one or more Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"ADDITIONAL RESTRICTED SECURITIES" 2.01
"ADDITIONAL SECURITIES" Preamble
"AFFILIATE TRANSACTION" 4.14
"AGENT MEMBERS" 2.01
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Term Defined in Section
---- ------------------
"ALTERNATE OFFER" 4.09
"ASSET SALE OFFER" 4.13
"ASSET SALE OFFER AMOUNT" 4.13
"ASSET SALE PAYMENT" 4.13
"ASSET SALE PAYMENT DATE" 4.13
"AUTHENTICATING AGENT" 2.02
"CHANGE OF CONTROL OFFER" 4.09
"CHANGE OF CONTROL PAYMENT" 4.09
"CHANGE OF CONTROL PAYMENT DATE" 4.09
"COVENANT DEFEASANCE" 8.02
"COVERAGE RATIO EXCEPTION" 4.10
"EVENT OF DEFAULT" 6.01
"EXCESS PROCEEDS" 4.13
"EXCHANGE GLOBAL NOTE" 2.01
"EXCHANGE SECURITIES" Preamble
"GLOBAL SECURITIES" 2.01
"GUARANTEE OBLIGATIONS" 11.01
"INCUR" 4.10
"INITIAL SECURITIES" Preamble
"INSTITUTIONAL ACCREDITED INVESTOR GLOBAL NOTE" 2.01
"INSTITUTIONAL ACCREDITED INVESTOR NOTES" 2.01
"LEGAL DEFEASANCE" 8.02
"NON-PAYMENT DEFAULT" 10.02
"PAYING AGENT" 2.03
"PAYMENT BLOCKAGE NOTICE" 10.02
"PAYMENT BLOCKAGE PERIOD" 10.02
"PAYMENT DEFAULT" 10.02
"PERMANENT REGULATION S GLOBAL NOTE" 2.01
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Term Defined in Section
---- ------------------
"PERMITTED DEBT" 4.10
"PRIVATE PLACEMENT LEGEND" 2.01
"REFUNDING CAPITAL STOCK" 4.11
"REGISTRAR" 2.03
"REGULATION S GLOBAL NOTE" 2.01
"REGULATION S LEGEND" 2.01
"REGULATION S NOTES" 2.01
"RESALE RESTRICTION TERMINATION DATE" 2.06
"RESTRICTED PERIOD" 2.01
"RESTRICTED SECURITIES" 2.01
"RETIRED CAPITAL STOCK" 4.11
"RULE 144A GLOBAL NOTE" 2.01
"RULE 144A NOTES" 2.01
"SECURITIES" Preamble
"TEMPORARY REGULATION S GLOBAL NOTE" 2.01
SECTION 1.03. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
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 Securities.
"INDENTURE SECURITY HOLDER" means a Holder or a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Issuer or any other
obligor on the Securities.
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All other TIA terms used in this Indenture that are defined by the
TIA, defined by the TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(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 words in the
plural include the singular;
(5) words used herein implying any gender shall apply to both
genders;
(6) provisions apply to successive events and transactions;
(7) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(8) the words "including," "includes" and similar words shall be
deemed to be followed by "without limitation";
(9) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP;
(10) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
(11) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP;
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(12) "$" and "U.S. Dollars" each refer to United States dollars, or
such other money of the United States of America that at the time of
payment is legal tender for payment of public and private debts; and
(13) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Securities, such mention shall be deemed to include mention of the
payment of Additional Interest, to the extent that, in such context,
Additional Interest is, was or would be payable in respect thereof.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form, Dating and Terms.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Initial
Securities issued on the date hereof will be in an aggregate principal amount of
$550,000,000. In addition, the Issuer may issue, from time to time in accordance
with the provisions of this Indenture, Additional Securities and Exchange
Securities. Furthermore, Securities may be authenticated and delivered upon
registration or transfer, or in lieu of, other Securities pursuant to Section
2.06, 2.07, 2.10 or 9.06 or in connection with a Change of Control Offer
pursuant to Section 4.09 or an Asset Sale Offer pursuant to Section 4.13.
The Initial Securities shall be known and designated as "10% Senior
Subordinated Notes, Series A, due 2012" of the Issuer. Additional Securities
issued as securities bearing one of the restrictive legends described in Section
2.01(d) ("RESTRICTED SECURITIES") shall be known and designated as "10% Senior
Subordinated Notes, Series A, due 2012" of the Issuer. Additional Securities
issued other than as Restricted Securities shall be known and designated as "10%
Senior Subordinated Notes, Series B, due 2012" of the Issuer, and Exchange
Securities shall be known and designated as "10% Senior Subordinated Notes,
Series B, due 2012" of the Issuer.
With respect to any Additional Securities, the Issuer shall set
forth in (a) a Board Resolution of the Issuer and (b) (i) an Officers'
Certificate or (ii) one or more indentures supplemental hereto, the following
information:
(1) the aggregate principal amount of such Additional Securities to
be authenticated and delivered pursuant to this Indenture;
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(2) the issue price and the issue date of such Additional
Securities, including the date from which interest shall accrue; and
(3) whether such Additional Securities shall be Restricted
Securities issued in the form of 10% Senior Subordinated Notes, Series A,
due 2012 or 10% Senior Subordinated Notes, Series B, due 2012.
The Initial Securities, the Additional Securities and the Exchange
Securities shall be considered collectively as a single class for all purposes
of this Indenture. Holders of the Initial Securities, the Additional Securities
and the Exchange Securities will vote and consent together on all matters to
which such Holders are entitled to vote or consent as one class, and none of the
Holders of the Initial Securities, the Additional Securities or the Exchange
Securities shall have the right to vote or consent as a separate class on any
matter to which such Holders are entitled to vote or consent.
If any of the terms of any Additional Securities are established by
action taken pursuant to Board Resolutions of the Issuer, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Issuer and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate or the indenture supplemental hereto
setting forth the terms of the Additional Securities.
(b) The Initial Securities are being offered and sold by the Issuer
pursuant to the Securities Purchase Agreement. The Initial Securities and any
Additional Securities (if issued as Restricted Securities) (the "ADDITIONAL
RESTRICTED SECURITIES") will be resold initially only to (A) QIBs in reliance on
Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such Initial
Securities and Additional Restricted Securities may thereafter be transferred
to, among others, QIBs, purchasers in reliance on Regulation S and IAIs in
accordance with Rule 501 of the Securities Act, in each case, in accordance with
the procedure described herein. Additional Securities offered after the date
hereof may be offered and sold by the Issuer from time to time pursuant to one
or more purchase agreements in accordance with applicable law.
Initial Securities and Additional Restricted Securities offered and
sold to QIBs in the United States of America in reliance on Rule 144A (the "RULE
144A NOTES") shall be issued in the form of a permanent global Security
substantially in the form of Exhibit A, which is hereby incorporated by
reference and made a part of this Indenture, including appropriate legends as
set forth in Section 2.01(d) (the "RULE 144A GLOBAL NOTE"), deposited with the
Trustee, as custodian for DTC, duly executed by the Issuer and authenticated by
the Trustee as hereinafter provided. The Rule 144A Global Note may be
represented by more than one certificate, if so required by DTC's rules
regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Rule 144A Global Note may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
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Initial Securities and Additional Securities offered and sold
outside the United States of America (the "REGULATION S NOTES") in reliance on
Regulation S shall initially be issued in the form of a temporary global
Security (the "TEMPORARY REGULATION S GLOBAL NOTE"), without interest coupons.
Beneficial interests in the Temporary Regulation S Global Note will be exchanged
for beneficial interests in a corresponding permanent global Security, without
interest coupons, substantially in the form of Exhibit A including appropriate
legends as set forth in Section 2.01(d) (the "PERMANENT REGULATION S GLOBAL
NOTE" and, together with the Temporary Regulation S Global Note, each a
"REGULATION S GLOBAL NOTE") within a reasonable period after the expiration of
the Restricted Period (as defined below) upon delivery of the certification in
the form attached hereto as Exhibit F. Each Regulation S Global Note will be
deposited upon issuance with, or on behalf of, the Trustee as custodian for DTC
in the manner described in this Article Two for credit to the respective
accounts of the purchasers (or to such other accounts as they may direct) at
Euroclear or Clearstream. Prior to the 40th day after the later of the
commencement of the offering of the Initial Securities and the Issue Date (such
period through and including such 40th day, the "RESTRICTED PERIOD"), interests
in the Temporary Regulation S Global Note may only be held through Euroclear or
Clearstream (as indirect participants in DTC) unless exchanged for interests in
a Global Security in accordance with the transfer and certification requirements
described herein.
Investors may hold their interests in the Regulation S Global Note
directly through Euroclear or Clearstream, if they are participants in such
systems, or indirectly through organizations which are participants in such
systems. After the expiration of the Restricted Period (but not earlier),
investors may also hold such interests through organizations other than
Euroclear or Clearstream that are participants in DTC's system. Euroclear and
Clearstream will hold such interests in the Regulation S Global Note on behalf
of their participants through customers' securities accounts in their respective
names on the books of their respective depositaries. Such depositaries, in turn,
will hold such interests in the applicable Regulation S Global Note in
customers' securities accounts in the depositaries' names on the books of DTC.
The Regulation S Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of the Regulation S Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities and Additional Securities resold to IAIs (the
"INSTITUTIONAL ACCREDITED INVESTOR NOTES") in the United States of America shall
be issued in the form of a permanent global Security substantially in the form
of Exhibit A including appropriate legends as set forth in Section 2.01(d) (the
"INSTITUTIONAL ACCREDITED INVESTOR GLOBAL NOTE") deposited with the Trustee, as
custodian for DTC, duly executed by the Issuer and
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authenticated by the Trustee as hereinafter provided. The Institutional
Accredited Investor Global Note may be represented by more than one certificate,
if so required by DTC's rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of the
Institutional Accredited Investor Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
Exchange Securities exchanged for interests in the Rule 144A Notes,
the Regulation S Notes and the Institutional Accredited Investor Notes will be
issued in the form of a permanent global Security, substantially in the form of
Exhibit A, which is hereby incorporated by reference and made a part of this
Indenture, deposited with the Trustee as hereinafter provided, including the
appropriate legend set forth in Section 2.01(d) (the "EXCHANGE GLOBAL NOTE").
The Exchange Global Note will be deposited upon issuance with, or on behalf of,
the Trustee as custodian for DTC, duly executed by the Issuer and authenticated
by the Trustee as hereinafter provided. The Exchange Global Note may be
represented by more than one certificate, if so required by DTC's rules
regarding the maximum principal amount to be represented by a single
certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Institutional Accredited Investor Global Note and the Exchange Global Note are
sometimes collectively herein referred to as the "GLOBAL SECURITIES."
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Issuer maintained for
such purpose in the Borough of Manhattan, The City of New York, State of New
York, or at such other office or agency of the Issuer as may be maintained for
such purpose pursuant to Section 2.03; provided, however, that, at the option of
the Issuer, each installment of interest may be paid by (i) check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
registry maintained by the Registrar or (ii) wire transfer to an account located
in the United States maintained by the payee. Payments in respect of Securities
represented by a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by DTC. Payments in respect of Securities represented by
Definitive Securities (including principal, premium, if any, and interest) held
by a Holder will be made by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than three Business Days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage, in addition to those set forth on Exhibit
A and in Section 2.01(d). The Issuer and the Trustee shall approve the forms of
the Securities and any
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notation, endorsement or legend on them. Each Security shall be dated the date
of its authentication. The terms of the Securities set forth in Exhibit A are
part of the terms of this Indenture and, to the extent applicable, the Issuer,
the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to be bound by such terms.
(c) Denominations. The Securities shall be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and an
integral multiple thereof.
(d) Restrictive Legends. Unless and until (i) an Initial Security is
sold under an effective registration statement or (ii) an Initial Security is
exchanged for an Exchange Security in connection with an effective registration
statement, in each case pursuant to the Registration Rights Agreement or a
similar agreement,
(1) the Rule 144A Global Note and the Institutional Accredited
Investor Global Note shall bear the legend set forth in Exhibit B hereto (the
"PRIVATE PLACEMENT LEGEND") on the face thereof.
(2) the Regulation S Global Note shall bear the legend set forth in
Exhibit C hereto (the "REGULATION S LEGEND") on the face thereof.
(3) Each Global Security, whether or not an Initial Security, shall
bear the legend set forth in Exhibit D hereto on the face thereof.
(4) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain for a period of two years copies of all
letters, notices and other written communications received pursuant to this
Section 2.01. The Issuer shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable notice to the Registrar.
(e) Book-Entry Provisions.
(i) This Section 2.01(e) shall apply only to Global Securities
deposited with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (x) be registered in the
name of DTC for such Global Security or the nominee of DTC, (y) be
delivered to the Trustee as custodian for DTC and (z) bear legends as set
forth in Section 2.01(d).
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(iii) Members of, or participants in, DTC ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by DTC or by the Trustee as the custodian of DTC or
under such Global Security, and DTC may be treated by the Issuer, the
Trustee and any agent of the Issuer or the Trustee as the absolute owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Trustee or any
agent of the Issuer or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and its Agent Members, the operation of customary practices of
DTC governing the exercise of the rights of a Holder of a beneficial
interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to subsection (f) of this Section
2.01 to beneficial owners who are required to hold Definitive Securities,
the Securities Custodian shall reflect on its books and records the date
and a decrease in the principal amount of such Global Security in an
amount equal to the principal amount of the beneficial interest in the
Global Security to be transferred, and the Issuer shall execute, and the
Trustee shall authenticate and make available for delivery, one or more
Definitive Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to subsection (f) of this Section 2.01, such
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Global
Security, an equal aggregate principal amount of Definitive Securities of
authorized denominations.
(vi) The registered Holder of a Global Security may grant proxies
and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Securities.
(vii) Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system
maintained by (a) the Holder of such Global Security (or its agent) or (b)
any Holder of a beneficial interest in such Global Security, and that
ownership of a beneficial interest in such Global Security shall be
required to be reflected in a book entry.
(f) Definitive Securities. (i) Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
Definitive Securities. If required to do so pursuant to any applicable law or
regulation, beneficial owners may obtain
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Definitive Securities in exchange for their beneficial interests in a Global
Security upon written request in accordance with DTC's and the Registrar's
procedures. In addition, Definitive Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security if (A) DTC notifies the Issuer that it is unwilling or unable to
continue as depositary for such Global Security or DTC ceases to be a clearing
agency registered under the Exchange Act, at a time when DTC is required to be
so registered in order to act as depositary, and in each case a successor
depositary is not appointed by the Issuer within 90 days of such notice or, (B)
the Issuer in its sole discretion executes and delivers to the Trustee and
Registrar an Officers' Certificate stating that such Global Security shall be so
exchangeable or (C) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC. In the event of the occurrence of any
of the events specified in clause (A), (B) or (C) of the preceding sentence, the
Issuer shall promptly make available to the Trustee a reasonable supply of
Definitive Securities in fully registered form without interest coupons.
(ii) Any Definitive Security delivered in exchange for an interest
in a Global Security pursuant to Section 2.01(e)(iv) or (v) shall, except
as otherwise provided by Section 2.06(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security set
forth in Section 2.01(d).
(iii) In connection with the exchange of a portion of a Definitive
Security for a beneficial interest in a Global Security, the Trustee shall
cancel such Definitive Security, and the Issuer shall execute, and the
Trustee shall authenticate and make available for delivery, to the
transferring Holder a new Definitive Security representing the principal
amount not so transferred.
SECTION 2.02. Execution and Authentication.
One Officer shall sign the Securities for the Issuer by manual or
facsimile signature. If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid and shall not be entitled to any
benefit under this Indenture until an authorized signatory of the Trustee
manually authenticates the Security. The signature of the Trustee on a Security
shall be conclusive evidence that such Security has been duly and validly
authenticated, issued and delivered under this Indenture. A Security shall be
dated the date of its authentication.
At any time and from time to time after the execution and delivery
of this Indenture, the Trustee shall authenticate and make available for
delivery: (1) Initial Securities for original issue on the Issue Date in an
aggregate principal amount of $550,000,000, (2) subject to the terms of this
Indenture, Additional Securities for original issue in an unlimited principal
amount and (3) Exchange Securities for issue only in a Registered
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Exchange Offer or upon resale under an effective Shelf Registration Statement,
and only in exchange for Initial Securities or Additional Securities of an equal
principal amount, in each case upon a written order of the Issuer signed by an
Officer of the Issuer (the "ISSUER ORDER"). Such Issuer Order shall specify
whether the Securities will be in the form of Definitive Securities or Global
Securities, the amount of the Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities, Additional Securities or Exchange
Securities.
The Trustee may appoint an agent (the "AUTHENTICATING AGENT")
reasonably acceptable to the Issuer to authenticate the Securities. Any such
appointment shall be evidenced by an instrument signed by a Responsible Officer,
a copy of which shall be furnished to the Issuer. Unless limited by the terms of
such appointment, any such Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating
Agent. An Authenticating Agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
In case the Issuer, pursuant to Article Five, shall be consolidated
or merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Issuer shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Five, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Issuer Order of the
successor Person, shall authenticate and make available for delivery Securities
as specified in such order for the purpose of such exchange. If Securities shall
at any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section 2.02 in exchange or substitution for or upon
registration of transfer of any Securities, such successor Person, at the option
of the Holders but without expense to them, shall provide for the exchange of
all Securities at the time outstanding for Securities authenticated and
delivered in such new name.
SECTION 2.03. Registrar and Paying Agent.
The Issuer shall maintain (a) an office or agency where Securities
may be presented for registration of transfer or for exchange (the "REGISTRAR"),
(b) an office or agency in the Borough of Manhattan, The City of New York, the
State of New York, where the Securities may be presented for payment (the
"PAYING AGENT") and (c) an office or agency
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where notices and demands to or upon the Issuer, if any, in respect of the
Securities and this Indenture may be served. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Issuer may have one or
more co-registrars and one or more additional Paying Agents. The term
"REGISTRAR" includes any co-registrars. The Issuer or any Affiliate thereof may
act as Registrar or Paying Agent. The term "Paying Agent" includes any
additional paying agent.
The Issuer shall enter into an appropriate agency agreement, which
shall incorporate the provisions of the TIA, with any Agent that is not a party
to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuer shall notify the Trustee of the
name and address of any such Agent. If the Issuer fails to maintain a Registrar
or any required co-registrar or Paying Agent, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 7.07.
The Issuer initially appoints the Trustee as Registrar, Paying Agent
and Agent for service of notices and demands in connection with the Securities
and this Indenture.
The Issuer may change the paying agents, the registrars or the
transfer agents without prior notice to the Holders. Any of the Issuer's
Wholly-Owned Subsidiaries organized in the United States may act as Paying
Agent, Registrar or transfer agent.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall 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.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of or premium or interest on the Securities (whether such money has been paid to
it by the Issuer, one or more of the Guarantors or any other obligor on the
Securities), and the Issuer and each Paying Agent shall notify the Trustee of
any Default by the Issuer (or any other obligor on the Securities) in making any
such payment. Money held in trust by a Paying Agent need not be segregated
except as required by law and in no event shall a Paying Agent be liable for any
interest on any money received by it hereunder. The Issuer at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.01(1) or (2), upon written
request to a Paying Agent, require such Paying Agent to pay forthwith all money
so held by it to the Trustee and to account for any funds disbursed. Upon making
such payment, such Paying Agent shall have no further liability for the money
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delivered to the Trustee. The provisions of Article Ten applicable to the
Trustee shall apply to the Paying Agents, mutatis mutandis.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the
Trustee at least two (2) Business Days prior to each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
(a) The following provisions shall apply with respect to any
proposed transfer of a Rule 144A Note or an Institutional Accredited Investor
Note prior to the date which is two years after the later of the date of its
original issue and the last date on which the Issuer or any Affiliate of the
Issuer was the owner of such Securities (or any predecessor thereto) (the
"RESALE RESTRICTION TERMINATION DATE"):
(i) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a QIB shall be made upon
the representation of the transferee in the form as set forth on the
reverse of the Security that it is purchasing for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional buyer" within
the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to an IAI shall be made
upon receipt by the Trustee or its agent of a certificate substantially in
the form set forth in Exhibit E from the proposed transferee and, if
requested by the Issuer or the Trustee, the delivery of an opinion of
counsel, certification and/or other information satisfactory to each of
them; and
(iii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a Non-U.S. Person shall
be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Exhibit F from the proposed
transferee and, if requested by the Issuer or the Trustee,
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the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them.
(b) The following provisions shall apply with respect to any
proposed transfer of a Regulation S Note prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial interest therein
to a QIB shall be made upon the representation of the transferee, in the
form of assignment on the reverse of the certificate, that it is
purchasing the Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Issuer as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest therein
to an IAI shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Exhibit E from the
proposed transferee and, if requested by the Issuer or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest
therein to a Non-U.S. Person shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in Exhibit
F hereof from the proposed transferee and, if requested by the Issuer or
the Trustee, receipt by the Trustee or its agent of an opinion of counsel,
certification and/or other information satisfactory to each of them.
After the expiration of the Restricted Period, interests in the
Regulation S Note may be transferred in accordance with applicable law without
requiring the certification set forth in Exhibit F or any additional
certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless (i) Initial Securities are being
exchanged for Exchange Securities in a Registered Exchange Offer in which case
the Exchange Securities shall not bear a Restricted Securities Legend, (ii) an
Initial Security is being transferred pursuant to the Shelf Registration
Statement or other effective registration statement or (iii) there is delivered
to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and
the Trustee to the effect that neither such
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legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act. Any Additional
Securities sold in a registered offering shall not be required to bear the
Restricted Securities Legend. Any Additional Restricted Securities sold in a
private offering shall bear the legends set forth in Exhibits B and C, as
applicable.
(d) The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.01 or this Section
2.06. The Issuer shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable prior written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the Issuer
shall, subject to the other terms and conditions of this Article Two,
execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Issuer may require the Holder to pay a
sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charges payable upon
exchange or transfer pursuant to Section 9.06).
(iii) The Issuer (and the Registrar) shall not be required to register
the transfer of or exchange of any Security for a period beginning (1) 15
days before the mailing of a notice of an offer to repurchase or redeem
Securities and ending at the close of business on the day of such mailing,
(2) selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being redeemed in part, and
(3) during a Change of Control Offer, an Alternate Offer or an Asset Sale
Offer if such Security is tendered pursuant to such Change of Control
Offer, Alternate Offer or Asset Sale Offer and not withdrawn.
(iv) Prior to the due presentation for registration of transfer of any
Security, the Issuer, the Trustee, the Paying Agent or the Registrar may
deem and treat the person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and interest on such Security and for all
other purposes whatsoever, including without limitation the transfer or
exchange of such Security, whether or not such Security is overdue, and
none of the Issuer, the Trustee, the Paying Agent or the Registrar shall
be affected by notice to the contrary.
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(v) Any Definitive Security delivered in exchange for an interest in a
Global Security pursuant to Section 2.01(e) shall, except as otherwise
provided by Section 2.06(c), bear the applicable legend regarding transfer
restrictions applicable to the Global Security set forth in Section
2.01(d).
(vi) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in,
DTC or other Person with respect to the accuracy of the records of DTC or
its nominee or of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the delivery to
any participant, member, beneficial owner or other Person (other than DTC)
of any notice (including any notice of redemption) or the payment of any
amount or delivery of any Securities (or other security or property) under
or with respect to such Securities. All notices and communications to be
given to the Holders and all payments to be made to Holders in respect of
the Securities shall be given or made only to or upon the order of the
registered Holders (which shall be DTC or its nominee in the case of a
Global Security). The rights of beneficial owners in any Global Security
shall be exercised only through DTC subject to the applicable rules and
procedures of DTC. The Trustee may rely and shall be fully protected in
relying upon information furnished by DTC with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among DTC participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Registrar or the
Trustee, or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Security if the Holder of such Security furnishes to
the Issuer and the Trustee evidence reasonably acceptable to them
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of the ownership and the destruction, loss or theft of such Security and if the
requirements of Section 8-405 of the New York Uniform Commercial Code as in
effect on the date of this Indenture are met. If required by the Trustee or the
Issuer, an indemnity bond shall be posted, sufficient in the judgment of all to
protect the Issuer, the Guarantors, if any, the Trustee or any Paying Agent from
any loss that any of them may suffer if such Security is replaced. The Issuer
may charge such Holder for the Issuer's reasonable out-of-pocket expenses in
replacing such Security and the Trustee may charge the Issuer for the Trustee's
expenses (including, without limitation, attorneys' fees and disbursements) in
replacing such Security. Every replacement Security shall constitute a
contractual obligation of the Issuer.
SECTION 2.08. Outstanding Securities.
The Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except (a) those canceled by it, (b)
those delivered to it for cancellation, (c) to the extent set forth in Sections
8.01 and 8.02, on or after the date the conditions set forth in Section 8.01 or
8.02 have been satisfied and (d) those Securities described in this Section as
not outstanding. A Security does not cease to be outstanding because the Issuer
or any of its Affiliates holds the Security (subject to the provisions of
Section 2.09).
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser in whose hands such Security is a legal, valid
and binding obligation of the Issuer. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.07.
If the principal amount of any Security is considered paid under
Section 4.01, it ceases to be outstanding and interest ceases to accrue. If on a
Redemption Date or the Maturity Date the Trustee or Paying Agent (other than the
Issuer or an Affiliate thereof) holds U.S. Legal Tender or U.S. Government
Securities sufficient to pay all of the principal and interest due on the
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Issuer or any of its Affiliates shall be disregarded, except that,
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that a
Responsible Officer of the Trustee actually knows are so owned shall be
disregarded.
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SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuer considers appropriate for temporary Securities.
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities. Notwithstanding the foregoing,
so long as the Securities are represented by a Global Security, such Global
Security may be in typewritten form.
SECTION 2.11. Cancellation.
The Issuer at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Issuer or a Subsidiary), and no one else, shall cancel and, at
the written direction of the Issuer, shall dispose of all Securities surrendered
for transfer, exchange, payment or cancellation in accordance with its customary
procedures. Subject to Section 2.07, the Issuer may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation. If the Issuer or any Guarantor shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, transferred, redeemed,
repurchased or canceled, such Global Security shall be returned by DTC to the
Trustee for cancellation or retained and canceled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for an interest in
another Global Security, redeemed, repurchased or canceled, the principal amount
of Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the custodian for such Global Security) with respect to such Global Security, by
the Trustee or the custodian, to reflect such reduction.
SECTION 2.12. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Securities,
it shall, unless the Trustee fixes another Record Date pursuant to Section 6.10,
pay the defaulted interest then borne by the Securities, plus (to the extent
lawful) any interest payable on the defaulted interest, in accordance with the
terms hereof. The Issuer may pay the defaulted interest to the
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persons who are Holders on a subsequent special Record Date, which special
Record Date shall be the fifteenth day next preceding the date fixed by the
Issuer for the payment of defaulted interest or the next succeeding Business Day
if such date is not a Business Day. At least 15 days before any such subsequent
special Record Date, the Issuer shall mail to each Holder, with a copy to the
Trustee, a notice that states the subsequent special Record Date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid. The Issuer may make payment of any
defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Securities
may be listed and, upon such notice as may be required by such exchange, if,
after written notice given by the Issuer to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by
the Trustee.
SECTION 2.13. CUSIP, ISIN and "Common Code" Numbers.
The Issuer in issuing the Securities may use CUSIP numbers, ISINs
and "Common Code" numbers (if then generally in use) and, if so, the Trustee
shall use, as applicable, CUSIP numbers, ISINs and "Common Code" numbers in
notices of redemption as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of such numbers, either as printed on the Securities or as contained in
any notice of a redemption, that reliance may be placed only on the other
identification number(s) printed on the Securities. The Issuer shall advise the
Trustee of any change in the CUSIP numbers, ISINs and "Common Code" numbers.
SECTION 2.14. Deposit of Moneys.
Prior to 10:00 a.m. New York City time, on each Interest Payment
Date, Maturity Date, Redemption Date, Change of Control Payment Date and Asset
Sale Payment Date, the Issuer shall have deposited with the Paying Agent in
immediately available funds U.S. Legal Tender sufficient to make cash payments,
if any, due on such Interest Payment Date, Maturity Date, Redemption Date,
Change of Control Payment Date and Asset Sale Payment Date, as the case may be,
in a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Asset Sale Payment Date, as the case may be. The
principal and interest on Global Securities shall be payable to the Depository
or its nominee, as the sole registered owner and the sole Holder of the Global
Securities represented thereby. The principal and interest on Definitive
Securities shall be payable, either in person or by mail, at the office of the
applicable Paying Agent.
SECTION 2.15. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months and actual days elapsed.
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SECTION 2.16. Calculation of Principal Amount of Securities.
The aggregate principal amount of the Securities, at any date of
determination, shall be principal amount of the Securities at such date of
determination. With respect to any matter requiring consent, waiver, approval or
other action of the Holders of a specified percentage of the principal amount of
all the Securities, such percentage shall be calculated, on the relevant date of
determination, by dividing (a) the principal amount, as of such date of
determination, of Securities, the Holders of which have so consented, by (b) the
aggregate principal amount, as of such date of determination, of the Securities
then outstanding, in each case, as determined in accordance with the preceding
sentence, and Section 2.08 of this Indenture. Any such calculation made pursuant
to this Section 2.16 shall be made by the Issuer and delivered to the Trustee
pursuant to an Officers' Certificate.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Securities pursuant to Section 5 or
Section 6 of the Securities, it shall notify the Trustee in writing of the
Redemption Date, the Redemption Price and the principal amount of Securities to
be redeemed. The Issuer shall give notice of redemption to the Paying Agent and
Trustee at least 30 days but not more than 60 days before the Redemption Date
(unless a shorter notice shall be agreed to by the Trustee in writing), together
with an Officers' Certificate stating that such redemption will comply with the
conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed at any time,
the Trustee will select Securities for redemption as follows:
(1) if the Securities are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Securities are listed; or
(2) if the Securities are not listed on any securities exchange, on
a pro rata basis, by lot or by such method as the Trustee deems fair and
appropriate.
No Securities of $1,000 or less shall be redeemed in part.
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SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Issuer shall mail a notice of redemption by first class mail, postage
prepaid, to each Holder whose Securities 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
Securities or a satisfaction and discharge of this Indenture. At the Issuer's
request, the Trustee shall forward the notice of redemption in the Issuer's name
and at the Issuer's expense; provided that in such case, the Trustee has
received notice from the Issuer at least 31 days, but not more than 60 days,
before a Redemption Date (unless a shorter notice shall be agreed to in writing
by the Trustee). Securities called for redemption become due on the date fixed
for redemption. On and after the Redemption Date, interest ceases to accrue on
Securities or portions of them called for redemption. Each notice of redemption
shall identify the Securities (including the CUSIP number) to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price, plus accrued interest, if
any;
(5) that, unless the Issuer defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
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(8) the CUSIP Number, ISIN and/or "Common Code" number, if any,
printed on the Securities being redeemed;
(9) that no representation is made as to the correctness or accuracy
of the CUSIP number or ISIN and/or "Common Code" number, if any, listed in
such notice or printed on the Securities; and
(10) the Section of the Securities pursuant to which the Securities
are to be redeemed.
The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption in whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security. Notices of redemption may not be conditional.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Securities called for redemption shall be paid at
the Redemption Price (which shall include accrued interest thereon to the
Redemption Date), but installments of interest, the maturity of which is on or
prior to the Redemption Date, shall be payable to Holders of record at the close
of business on the relevant Record Dates. On and after the Redemption Date
interest shall cease to accrue on Securities or portions thereof called for
redemption.
SECTION 3.05. Deposit of Redemption Price.
With respect to the Securities, prior to 10:00 a.m., New York time,
on the Redemption Date, the Issuer shall deposit with the Paying Agent (or, if
the Issuer or a Wholly Owned Subsidiary is a Paying Agent, shall segregate and
hold in trust) U.S. Legal Tender and/or U.S. Government Securities sufficient to
pay the redemption price of and accrued interest on all Securities or portions
thereof to be redeemed on that date other than Securities or portions of
Securities called for redemption that have been delivered by the Issuer to the
Trustee for cancellation. On and after the Redemption Date, interest shall cease
to accrue on the Securities or portions thereof called for redemption so long as
the Issuer has deposited with the Paying Agent funds sufficient to pay the
principal of, plus accrued and unpaid interest on, the Securities.
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SECTION 3.06. Securities Redeemed in Part.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion of the original Security shall be issued in the
name of the Holder thereof upon cancellation of the original Security.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
(a) The Issuer shall pay the principal of (and premium, if any) and
interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture. An installment of principal of or interest on the
Securities shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Issuer or an Affiliate thereof) holds on that date
U.S. Legal Tender and/or U.S. Government Securities designated for and
sufficient to pay the installment. Interest on the Securities will be computed
on the basis of a 360-day year comprised of twelve 30-day months.
(b) The Issuer shall pay interest on overdue principal (including,
without limitation, post petition interest in a proceeding under any Bankruptcy
Law), and overdue interest, to the extent lawful, at the same rate per annum
borne by the Securities.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Issuer shall maintain the offices or agencies required under
Section 2.03. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such offices or agencies. If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 12.02.
(b) The Issuer may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. 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.
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(c) The Issuer hereby initially designates the Corporate Trust
Office of the Trustee as one such office or agency of the Issuer in accordance
with Section 2.03.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Five, the Issuer shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence in accordance with its organizational documents.
SECTION 4.04. Payment of Taxes and Other Claims.
The Issuer shall, and shall cause each of its Subsidiaries to, pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges levied
or imposed upon it or any of its respective Subsidiaries or upon the income,
profits or property of it or any of its respective Subsidiaries and (b) all
lawful claims for labor, materials and supplies except, in each case, any such
tax, assessment, charge or claim as is being contested in good faith by
appropriate actions or where the failure to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim is not materially
adverse to the Holders.
SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Issuer shall cause all material properties owned by or
leased by it or any of its Restricted Subsidiaries used or useful to the conduct
of its business or the business of any of its Restricted Subsidiaries to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all repairs, renewals,
replacements, and betterments thereof, all as in its judgment may be necessary,
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section 4.05 shall prevent the Issuer or any of its Restricted Subsidiaries from
discontinuing the use, operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors of the Issuer or any such Restricted Subsidiary
desirable in the conduct of the business of the Issuer or any such Restricted
Subsidiary; provided, further, that nothing in this Section 4.05 shall prevent
the Issuer or any of its Restricted Subsidiaries from discontinuing or disposing
of any properties to the extent otherwise permitted by this Indenture.
(b) The Issuer shall maintain, and shall cause its Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self insured amounts
and co-insurance provisions, as are appropriate for a business of this type and
size as determined in good faith by the Issuer, including property and casualty
loss, workers' compensation and interruption of business insurance.
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SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Issuer shall deliver to the Trustee, within 90 days after
the close of each fiscal year commencing with the fiscal year ending December
31, 2004, an Officers' Certificate stating that a review of the activities of
the Issuer and its Restricted Subsidiaries has been made under the supervision
of the signing Officers with a view to determining whether the Issuer 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 such Officer's knowledge, the Issuer during such preceding fiscal year
has kept, observed, performed and fulfilled each and every such covenant and no
Default occurred during such year and at the date of such certificate there is
no Default that has occurred and is continuing or, if such signers do know of
such Default, the certificate shall describe its status with particularity. The
Officers' Certificate shall also notify the Trustee should the Issuer elect to
change the manner in which it fixes its fiscal year end.
(b) The Issuer shall deliver to the Trustee as soon as possible, and
in any event within five days after the Issuer becomes aware of the occurrence
of any Default, an Officers' Certificate specifying the Default and describing
its status with particularity and the action proposed to be taken thereto.
(c) The Issuer's fiscal year currently ends on December 31. The
Issuer will provide written notice to the Trustee of any change in its fiscal
year.
SECTION 4.07. Compliance with Laws.
The Issuer shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States, all states and municipalities thereof,
and of any governmental department, commission, board, regulatory authority,
bureau, agency and instrumentality of the foregoing, in respect of the conduct
of their respective businesses and the ownership of their respective properties,
except, in any such case, to the extent the failure to so comply would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, financial condition or results of operations of
the Issuer and its Restricted Subsidiaries taken as a whole.
SECTION 4.08. Waiver of Stay, Extension or Usury Laws.
The Issuer covenants (to the extent permitted by applicable law)
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 or extension law or any
usury law or other law that would prohibit or forgive the Issuer from paying all
or any portion of the principal of and/or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture, and (to the
extent
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permitted by applicable law) the Issuer hereby expressly waives all benefit or
advantage of any such law, and covenants (to the extent permitted by applicable
law) that it will not 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 had been enacted.
SECTION 4.09. Change of Control.
(a) If a Change of Control occurs, unless the Issuer at such time
has the right and gives notice of redemption under Section 5 or Section 6 of the
Securities, each Holder will have the right to require the Issuer to repurchase
all or any part (equal to $1,000 or an integral multiple of $1,000) of that
Holder's Securities pursuant to a Change of Control Offer (the "CHANGE OF
CONTROL OFFER") on the terms set forth in this Indenture. In the Change of
Control Offer, the Issuer will offer to pay an amount in cash (the "CHANGE OF
CONTROL PAYMENT") equal to 101% of the aggregate principal amount of Securities
repurchased, plus accrued and unpaid interest and Additional Interest, if any,
on the Securities repurchased, to the date of purchase.
(b) Within 30 days following any Change of Control, unless the
Issuer at such time has the right and gives notice of redemption under Section 5
or Section 6 of the Securities, the Issuer will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Securities on the date (the "CHANGE OF CONTROL
PAYMENT DATE") specified in the notice, which date will be no earlier than 30
days and no later than 60 days from the date such notice is mailed, pursuant to
the procedures required by this Indenture and described in such notice. Such
notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.09 and that all Securities tendered and not withdrawn will be
accepted for payment;
(2) the purchase price (including the amount of accrued interest and
any Additional Interest) and the Change of Control Payment Date;
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any
Security accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
Change of Control Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day prior
to the Change of Control Payment Date;
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(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Change of Control Payment Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing such Holder's election to have such Security
purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
(c) On the Change of Control Payment Date, the Issuer will, to the
extent lawful:
(1) accept for payment all Securities or portions of Securities
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 Securities or portions of Securities
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Securities or portions of Securities being
purchased by the Issuer.
(d) The Paying Agent will promptly mail to each Holder of Securities
properly tendered the Change of Control Payment for such Securities, and the
Trustee will promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each
such new Security will be in a principal amount of $1,000 or an integral
multiple of $1,000.
Prior to complying with any of the provisions of this Section 4.09,
but in any event within 90 days following a Change of Control, to the extent
required to permit the Issuer to comply with this Section 4.09, the Issuer will
either repay all outstanding Senior Debt or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Debt. The Issuer will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date. However, if the Change of
Control Payment Date is on or after an interest Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Security is registered at the close of business on
such Record Date, and no additional
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interest shall be payable to Holders who tender Securities pursuant to the
Change of Control Offer.
(e) Notwithstanding the foregoing, the Issuer shall not be required
to make a Change of Control Offer, as provided above, if, in connection with or
in contemplation of any Change of Control, it or a third party has made an offer
to purchase (an "ALTERNATE OFFER") any and all Securities validly tendered at a
cash price equal to or higher than the Change of Control Payment and has
purchased all Securities properly tendered in accordance with the terms of such
Alternate Offer. The Alternate Offer must comply with all the other provisions
applicable to the Change of Control Offer, shall remain, if commenced prior to
the Change of Control, open for acceptance until the consummation of the Change
of Control and must permit Holders to withdraw any tenders of Securities made
into the Alternate Offer until the final expiration or consummation thereof,
subject to Sections 4.09(b)(5) and (6).
(f) The Issuer will comply, and will cause any third party making a
Change of Control Offer or an Alternate Offer to comply, with the requirements
of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in
connection with a Change of Control Offer or an Alternate Offer. To the extent
the provisions of any applicable securities laws or regulations conflict with
the provisions of this Indenture relating to a Change of Control Offer, the
Issuer will not be deemed to have breached its obligations under this Indenture
by virtue of complying with such laws or regulations.
SECTION 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly or directly liable, contingently or
otherwise, with respect to (collectively "INCUR") any Indebtedness (including
Acquired Debt), and will not permit any of its Restricted Subsidiaries to issue
any shares of Preferred Stock; provided, however, that the Issuer and any
Restricted Subsidiary that is a Guarantor may incur Indebtedness (including
Acquired Debt) and any Restricted Subsidiary that is a Guarantor may issue
Preferred Stock if the Fixed Charge Coverage Ratio for the Issuer'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 Preferred Stock is issued would have been (x)
prior to January 1, 2006, at least 2.0 to 1.0 and (y) on and after January 1,
2006, at least 2.375 to 1.0, in each case determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom) (the "COVERAGE
RATIO EXCEPTION"), as if the additional Indebtedness had been incurred or the
Preferred Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter period.
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(b) Section 4.10(a) will not prohibit the incurrence of any of the
following (collectively, "PERMITTED DEBT"):
(1) the incurrence of Indebtedness under the Credit Agreement
together with the incurrence of the guarantees thereunder and the issuance
and creation of letters of credit and bankers' acceptances thereunder
(with letters of credit and bankers' acceptances being deemed to have a
principal amount equal to the face amount thereof), up to an aggregate
principal amount, of $725.0 million outstanding at any one time, less the
amount of all mandatory principal payments (with respect to revolving
borrowings and letters of credit, only to the extent revolving commitments
are correspondingly reduced) actually made by the borrower thereunder in
respect of Indebtedness thereunder with Net Proceeds from Asset Sales;
(2) the incurrence by the Issuer and the Guarantors of Indebtedness
represented by the Securities (including any Guarantee thereof) issued on
the Issue Date and the incurrence by the Issuer and the Guarantors of
Indebtedness represented by the Exchange Securities issued in exchange for
the Securities issued on the Issue Date (including any Guarantee thereof);
(3) Existing Indebtedness (other than Indebtedness described in
clauses (1) and (2) of this Section 4.10(b));
(4) Indebtedness (including Capitalized Lease Obligations) incurred
by the Issuer or any Restricted Subsidiary to finance the purchase, lease
or improvement of property (real or personal) or equipment that is used or
useful in a Permitted Business (whether through the direct purchase of
assets or the Capital Stock of any Person owning such assets) within 270
days before or after such purchase, lease or improvement in an aggregate
principal amount that, when aggregated with the principal amount of all
other Indebtedness then outstanding and incurred pursuant to this clause
(4) and any Indebtedness that refunds or refinances such Indebtedness,
does not exceed the greater of (x) $25.0 million and (y) 1.0% of Total
Assets;
(5) Indebtedness incurred by the Issuer or any Restricted Subsidiary
constituting reimbursement obligations with respect to letters of credit
issued in the ordinary course of business, including without limitation
letters of credit in respect of workers' compensation claims, health,
disability or other employee benefits or property, casualty or liability
insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers' compensation claims;
provided, however, that upon the drawing of such letters of credit or the
incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or incurrence;
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(6) Indebtedness arising from agreements of the Issuer or a
Restricted Subsidiary providing for 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, other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or a Subsidiary for
the purpose of financing such acquisition; provided, however, that (A)
such Indebtedness is not reflected on the balance sheet of the Issuer or
any Restricted Subsidiary (contingent obligations referred to in a
footnote to financial statements and not otherwise reflected on the
balance sheet will not be deemed to be reflected on such balance sheet for
purposes of this clause (A)) and (B) the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross
proceeds including noncash proceeds (the fair market value of such noncash
proceeds being measured at the time received and without giving effect to
any subsequent changes in value) actually received by the Issuer and any
Restricted Subsidiaries in connection with such disposition;
(7) Indebtedness of the Issuer owed to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by
the Issuer or any Restricted Subsidiary; provided, however, that (A) any
subsequent issuance or transfer of any Capital Stock or any other event
that results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Indebtedness (except to
the Issuer or a Restricted Subsidiary) shall be deemed, in each case, to
constitute the incurrence of such Indebtedness by the issuer thereof and
(B) if the Issuer is the obligor on such Indebtedness, such Indebtedness
is expressly subordinated in right of payment to all obligations of the
Issuer with respect to the Securities;
(8) shares of Preferred Stock of a Restricted Subsidiary issued to
the Issuer or a Restricted Subsidiary; provided that any subsequent
issuance or transfer of any Capital Stock or any other event which results
in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
any other subsequent transfer of any such shares of Preferred Stock
(except to the Issuer or a Restricted Subsidiary) shall be deemed in each
case to be an issuance of such shares of Preferred Stock;
(9) Hedging Obligations of the Issuer or any Restricted Subsidiary
(excluding Hedging Obligations entered into for speculative purposes) for
the purpose of limiting (A) interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Indenture to be
outstanding or (B) exchange rate risk with respect to any currency
exchange;
(10) obligations in respect of performance and surety bonds and
performance and completion guarantees provided by the Issuer or any
Restricted
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Subsidiary or obligations in respect of letters of credit related thereto,
in each case in the ordinary course of business or consistent with past
practice;
(11) Indebtedness of the Issuer or any Restricted Subsidiary or
Preferred Stock of any Restricted Subsidiary not otherwise permitted
hereunder in an aggregate principal amount or liquidation preference
which, when aggregated with the principal amount and liquidation
preference of all other Indebtedness and Preferred Stock then outstanding
and incurred pursuant to this clause (11), does not at any one time
outstanding exceed $100.0 million (it being understood that any
Indebtedness or Preferred Stock incurred pursuant to this clause (11)
shall cease to be deemed incurred or outstanding for purposes of this
clause (11) but shall be deemed incurred for the purposes of Section
4.10(a) from and after the first date on which the Issuer or such
Restricted Subsidiary could have incurred such Indebtedness or Preferred
Stock under Section 4.10(a) without reliance on this clause (11));
(12) (x) any guarantee by the Issuer or a Guarantor of Indebtedness
of any Restricted Subsidiary so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Indenture; provided that if such Indebtedness is by its
express terms subordinated in right of payment to the Securities or the
Guarantee of such Restricted Subsidiary, as applicable, any such guarantee
of such Guarantor with respect to such Indebtedness shall be subordinated
in right of payment to such Guarantor's Guarantee with respect to the
Securities substantially to the same extent as such Indebtedness is
subordinated to the Securities or the Guarantee of such Restricted
Subsidiary, as applicable, (y) any guarantee by a Non-Guarantor Restricted
Subsidiary of Indebtedness of another Non-Guarantor Restricted Subsidiary
incurred in accordance with the terms of this Indenture, and (z) any
guarantee by a Guarantor of Indebtedness of the Issuer incurred in
accordance with the terms of this Indenture;
(13) the incurrence by the Issuer or any Restricted Subsidiary of
Indebtedness or Preferred Stock that serves to refund or refinance any
Indebtedness incurred as permitted by Section 4.10(a) and clauses (2) and
(3) above, this clause (13) and clauses (14) and (17) below or any
Indebtedness issued to so refund or refinance such Indebtedness including
additional Indebtedness incurred to pay premiums and fees in connection
therewith (the "REFINANCING INDEBTEDNESS") prior to its respective
maturity; provided, however, that such Refinancing Indebtedness (A) has a
Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred which is not less than the remaining Weighted
Average Life to Maturity of the Indebtedness being refunded or refinanced,
(B) to the extent such Refinancing Indebtedness refinances Indebtedness
subordinated or pari passu to the Securities or the Guarantees, such
Refinancing Indebtedness is subordinated or pari passu to the Securities
or the Guarantees at least to the same extent as the Indebtedness being
refinanced or
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refunded, (C) shall not include (x) Indebtedness or Preferred Stock of a
Subsidiary that is not a Guarantor that refinances Indebtedness or
Preferred Stock of the Issuer or a Guarantor or (y) Indebtedness or
Preferred Stock of the Issuer or a Restricted Subsidiary that refinances
Indebtedness or Preferred Stock of an Unrestricted Subsidiary, (D) shall
not be in a principal amount in excess of the principal amount of,
premium, if any, accrued interest on, and related fees and expenses of,
the Indebtedness being refunded or refinanced and (E) shall not have a
stated maturity date prior to the Stated Maturity of the Indebtedness
being refunded or refinanced; and provided, further, that subclause (A) of
this clause (13) will not apply to any refunding or refinancing of any
Senior Debt;
(14) Indebtedness or Preferred Stock of Persons that are acquired by
the Issuer or any Restricted Subsidiary or merged into the Issuer or a
Restricted Subsidiary in accordance with the terms of this Indenture;
provided that such Indebtedness or Preferred Stock is not incurred in
connection with or in contemplation of such acquisition or merger; and
provided, further, that after giving effect to such incurrence of
Indebtedness either (A) the Issuer would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception
or (B) the Fixed Charge Coverage Ratio would be greater than immediately
prior to such acquisition;
(15) Indebtedness arising from the honoring by a bank or financial
institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided that such
Indebtedness is extinguished within five Business Days of its incurrence;
(16) Indebtedness of the Issuer or any Restricted Subsidiary of the
Issuer supported by a letter of credit issued pursuant to the Credit
Agreement in a principal amount not in excess of the stated amount of such
letter of credit;
(17) Contribution Indebtedness;
(18) (a) if the Issuer could incur $1.00 of additional Indebtedness
pursuant to the Coverage Ratio Exception after giving effect to such
borrowing, Indebtedness of Foreign Subsidiaries of the Issuer not
otherwise permitted hereunder or (b) if the Issuer could not incur $1.00
of additional Indebtedness pursuant to the Coverage Ratio Exception hereof
after giving effect to such borrowing, Indebtedness of Foreign
Subsidiaries of the Issuer incurred for working capital purposes,
provided, however, that the aggregate principal amount of Indebtedness
incurred under this clause (18) which, when aggregated with the principal
amount of all other Indebtedness then outstanding and incurred pursuant to
this clause (18), does not exceed the greater of (x) $65.0 million and (y)
2.50% of Total Assets; and
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(19) Indebtedness consisting of promissory notes issued by the
Issuer or any Guarantor to current or former officers, directors and
employees, their respective estates, spouses or former spouses to finance
the purchase or redemption of Equity Interests of Holdco permitted by
Section 4.11.
(c) For purposes of determining compliance with this Section 4.10,
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (1) through
(19) above, or is entitled to be incurred pursuant to Section 4.10(a), the
Issuer will be permitted to classify and later reclassify such item of
Indebtedness in any manner that complies with this covenant, and such item of
Indebtedness will be treated as having been incurred pursuant to only one of
such categories. Accrual of interest, the accretion of accreted value and the
payment of interest in the form of additional Indebtedness will not be deemed to
be an incurrence of Indebtedness for purposes of this covenant. Notwithstanding
the foregoing, Indebtedness under the Credit Agreement outstanding on the date
on which Securities are first issued and authenticated under this Indenture 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" in Section 4.10(b)
and the Issuer shall not be permitted to reclassify all or any portion of such
Indebtedness. The maximum amount of Indebtedness that the Issuer and its
Restricted Subsidiaries may incur pursuant to this covenant shall not be deemed
to be exceeded, with respect to any outstanding Indebtedness, solely as a result
of fluctuations in the exchange rate of currencies.
SECTION 4.11. Restricted Payments.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(A) declare or pay any dividend or make any other distribution on
account of the Issuer's or any of its Restricted Subsidiaries' Equity
Interests, including any dividend or distribution payable in connection
with any merger or consolidation (other than (x) dividends or
distributions by the Issuer payable in Equity Interests (other than
Disqualified Stock) of the Issuer or in options, warrants or other rights
to purchase such Equity Interests (other than Disqualified Stock) or (y)
dividends or distributions by a Restricted Subsidiary to the Issuer or any
other Restricted Subsidiary (and if such Restricted Subsidiary is not a
Wholly Owned Subsidiary, to its other holders of common stock on a pro
rata basis) so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by a
Restricted Subsidiary other than a Wholly Owned Subsidiary, the Issuer or
a Restricted Subsidiary receives at least its pro rata share of such
dividend or distribution in accordance with its Equity Interests in such
class or series of securities);
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(B) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Issuer or any direct or indirect parent
corporation of the Issuer, including in connection with any merger or
consolidation involving the Issuer;
(C) make any principal payment on, or redeem, repurchase, defease or
otherwise acquire or retire for value, in each case prior to any scheduled
repayment, sinking fund payment or maturity, any Indebtedness subordinated
or junior in right of payment to the Securities (or, as applicable, any
Guarantees) (other than (x) Indebtedness permitted under clauses (7) and
(8) of the definition of "Permitted Debt" in Section 4.10(b) or (y) the
purchase, repurchase or other acquisition of Indebtedness subordinated or
junior in right of payment to the Securities, purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of purchase,
repurchase or acquisition); or
(D) make any Restricted Investment (all such payments and other
actions set forth in these clauses (A) through (D) being collectively
referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence of such Restricted Payment;
(2) the Issuer would, at the time of such Restricted Payment and
after giving pro forma effect thereto 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 additional Indebtedness pursuant
to the Coverage Ratio Exception; and
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Issuer and the Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted
by clauses (3), (4), (5), (6), (8), (10), (11), (12), (13) and (15) of
Section 4.11(b)), is less than the sum, without duplication, of
(a) 50% of the Consolidated Net Income of the Issuer for the
period (taken as one accounting period) from the Issue Date to the
end of the Issuer's most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, in the case such Consolidated Net Income for
such period is a deficit, minus 100% of such deficit), plus
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(b) 100% of the aggregate net cash proceeds and the fair
market value, as determined in good faith by the Board of Directors
of the Issuer, of property and marketable securities received by the
Issuer after the Issue Date from the issue or sale of (x) Equity
Interests of the Issuer (including Retired Capital Stock) (but
excluding (i) cash proceeds and marketable securities received from
Equity Offerings to the extent used to redeem Securities in
compliance with Section 6 of the Securities, (ii) cash proceeds and
marketable securities received from the sale of Equity Interests of
the Issuer, or Equity Interests of Holdco the proceeds of which are
contributed to the Issuer, to members of management, directors or
consultants of the Issuer, any direct or indirect parent corporation
of the Issuer and their Subsidiaries after the Issue Date to the
extent such amounts have been applied to Restricted Payments made in
accordance with Section 4.11(b)(4), (iii) Designated Preferred
Stock, (iv) the Cash Contribution Amount and (v) Disqualified Stock)
or (y) debt securities of the Issuer that have been converted into
such Equity Interests of the Issuer (other than Refunding Capital
Stock, Equity Interests or convertible debt securities of the Issuer
sold to a Restricted Subsidiary or the Issuer, as the case may be,
and other than Disqualified Stock or Designated Preferred Stock or
debt securities that have been converted into Disqualified Stock or
Designated Preferred Stock), plus
(c) 100% of the aggregate amount of cash and the fair market
value, as determined in good faith by the Board of Directors of the
Issuer, of property and marketable securities contributed to the
capital of the Issuer after the Issue Date (other than (i) net cash
proceeds from Equity Offerings to the extent used to redeem
Securities in compliance with Section 6 of the Securities, (ii) by a
Restricted Subsidiary, (iii) any Excluded Contributions, (iv) any
Disqualified Stock, (v) any Designated Preferred Stock, (vi) the
Cash Contribution Amount and (vii) net cash proceeds applied to
Restricted Payments made in accordance with Section 4.11(b)(4)),
plus
(d) 100% of the aggregate amount received in cash and the fair
market value, as determined in good faith by the Board of Directors
of the Issuer, of property and marketable securities received after
the Issue Date by means of (A) the sale or other disposition (other
than to the Issuer or a Restricted Subsidiary) of Restricted
Investments made by the Issuer or its Restricted Subsidiaries and
repurchases and redemptions of such Restricted Investments from the
Issuer or its Restricted Subsidiaries and repayments of loans or
advances which constitute Restricted Investments of the Issuer or
its Restricted Subsidiaries or (B) the sale (other than to the
Issuer or a Restricted Subsidiary) of the Capital Stock of an
Unrestricted Subsidiary or a distribution from an Unrestricted
Subsidiary (other than in each case to the extent the
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Investment in such Unrestricted Subsidiary was made by a Restricted
Subsidiary pursuant to clause (11) of Section 4.11(b) or to the
extent such Investment constituted a Permitted Investment) or a
dividend from an Unrestricted Subsidiary, plus
(e) in the case of the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary or the merger or consolidation
of an Unrestricted Subsidiary into the Issuer or a Restricted
Subsidiary or the transfer of assets of an Unrestricted Subsidiary
to the Issuer or a Restricted Subsidiary, the fair market value of
the Investment in such Unrestricted Subsidiary, as determined by the
Board of Directors of the Issuer in good faith at the time of the
redesignation of such Unrestricted Subsidiary as a Restricted
Subsidiary or at the time of such merger, consolidation or transfer
of assets (other than an Unrestricted Subsidiary to the extent the
Investment in such Unrestricted Subsidiary was made by a Restricted
Subsidiary pursuant to clause (11) of Section 4.11(b) or to the
extent such Investment constituted a Permitted Investment).
(b) Notwithstanding the foregoing, the provisions set forth in
Section 4.11(a) do not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Indenture;
(2) (A) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Issuer or any direct or indirect parent
corporation ("RETIRED CAPITAL STOCK") or Indebtedness subordinated to the
Securities in exchange for or out of the proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary or the Issuer) of
Equity Interests of the Issuer or any direct or indirect parent
corporation of the Issuer or contributions to the equity capital of the
Issuer (in each case, other than Disqualified Stock and the Cash
Contribution Amount) ("REFUNDING CAPITAL STOCK") and (B) the declaration
and payment of dividends on the Retired Capital Stock out of the proceeds
of the substantially concurrent sale (other than to a Subsidiary of the
Issuer or to an employee stock ownership plan or any trust established by
the Issuer or any of its Subsidiaries) of Refunding Capital Stock;
(3) the redemption, repurchase or other acquisition or retirement of
Indebtedness subordinated to the Securities made by exchange for, or out
of the proceeds of the substantially concurrent sale of, new Indebtedness
of the borrower thereof, which is incurred in compliance with Section 4.10
so long as (A) the principal amount of such new Indebtedness does not
exceed the principal amount of the Indebtedness subordinated to the
Securities being so redeemed, repurchased, acquired
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or retired for value plus related fees and expenses and the amount of any
premium required to be paid under the terms of the instrument governing
the Indebtedness subordinated to the Securities being so redeemed,
repurchased, acquired or retired, (B) such new Indebtedness is
subordinated to the Securities and any Guarantees thereof at least to the
same extent as the Indebtedness subordinated to the Securities so
purchased, exchanged, redeemed, repurchased, acquired or retired for
value, (C) such new Indebtedness has a final scheduled maturity date equal
to or later than the final scheduled maturity date of the Indebtedness
subordinated to the Securities being so redeemed, repurchased, acquired or
retired and (D) such new Indebtedness has a Weighted Average Life to
Maturity equal to or greater than the remaining Weighted Average Life to
Maturity of the Indebtedness subordinated to the Securities being so
redeemed, repurchased, acquired or retired;
(4) a Restricted Payment to pay for the repurchase, retirement or
other acquisition or retirement for value of Equity Interests of the
Issuer or any of its direct or indirect parent corporations held by any
future, present or former employee, director or consultant of the Issuer,
any of its Subsidiaries or any of its direct or indirect parent
corporations pursuant to any management equity plan or stock option plan
or any other management or employee benefit plan or agreement; provided,
however, that the aggregate amount of Restricted Payments made under this
clause (4) does not exceed in any calendar year $15.0 million (with unused
amounts in any calendar year being carried over to the two succeeding
calendar years); and provided, further, that such amount may be increased
by an amount not to exceed (A) the cash proceeds from the sale of Equity
Interests (other than Disqualified Stock) of the Issuer and, to the extent
contributed to the Issuer, Equity Interests of any of its direct or
indirect parent corporations, in each case to members of management,
directors or consultants of the Issuer, any of its Subsidiaries or any of
its direct or indirect parent corporations that occurs after the Issue
Date plus (B) the amount of any cash bonuses otherwise payable to members
of management, directors or consultants of the Issuer or any of its
Subsidiaries or any of its direct or indirect parent corporations in
connection with the Transactions that are foregone in return for the
receipt of Equity Interests of the Issuer or any direct or indirect parent
corporation of the Issuer plus (C) the cash proceeds of key man life
insurance policies received by the Issuer or its Restricted Subsidiaries
after the Issue Date (provided that the Issuer may elect to apply all or
any portion of the aggregate increase contemplated by clauses (A), (B) and
(C) above in any calendar year) less (D) the amount of any Restricted
Payments previously made pursuant to clauses (A), (B) and (C) of this
clause (4);
(5) the declaration and payment of dividends to holders of any class
or series of Disqualified Stock of the Issuer or any Restricted Subsidiary
issued or incurred in accordance with this Section 4.11 to the extent such
dividends are included in the definition of "Fixed Charges" for such
entity;
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(6) the declaration and payment of dividends or distributions to
holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) issued after the Issue Date and the declaration and
payment of dividends to any direct or indirect parent company of the
Issuer, the proceeds of which will be used to fund the payment of
dividends or distributions to holders of any class or series of Designated
Preferred Stock (other than Disqualified Stock) of any direct or indirect
parent company of the Issuer issued after the Issue Date; provided,
however, that (A) for the most recently ended four full fiscal quarters
for which internal financial statements are available immediately
preceding the date of issuance of such Designated Preferred Stock, after
giving effect to such issuance (and the payment of dividends or
distributions) on a pro forma basis, the Issuer would have had a Fixed
Charge Coverage Ratio of at least 2.00 to 1.00 and (B) the aggregate
amount of dividends declared and paid pursuant to this clause (6) does not
exceed the net cash proceeds actually received by the Issuer from any such
sale of Designated Preferred Stock (other than Disqualified Stock) issued
after the Issue Date;
(7) Investments in Unrestricted Subsidiaries having an aggregate
fair market value, taken together with all other Investments made pursuant
to this clause (7) that are at the time outstanding, after giving effect
to the sale of an Unrestricted Subsidiary to the extent the proceeds of
such sale received by the Issuer and/or its Restricted Subsidiaries
consist of cash and/or marketable securities, not to exceed the greater of
$15.0 million and 1.0% of Total Assets at the time of such Investment
(with the fair market value of each Investment being measured at the time
made and without giving effect to subsequent changes in value);
(8) repurchases of Equity Interests deemed to occur upon exercise of
stock options or warrants if such Equity Interests represent a portion of
the exercise price of such options or warrants;
(9) the payment of dividends on the Issuer's common stock following
the first public offering of the Issuer's common stock or the common stock
of any of its direct or indirect parent corporations after the Issue Date,
of up to 6.0% per annum of the net cash proceeds received by or
contributed to the Issuer in any past or future public offering, other
than public offerings with respect to the Issuer's common stock registered
on Form S-4 or Form S-8 and other than any public sale constituting an
Excluded Contribution;
(10) Investments that are made with Excluded Contributions;
(11) other Restricted Payments in an aggregate amount not to exceed
$35.0 million;
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(12) the declaration and payment of dividends to, or the making of
loans to, Holdco in amounts required for it to pay:
(A) franchise taxes and other fees, taxes and expenses
required to maintain its corporate existence;
(B) federal, state and local income taxes to the extent such
income taxes are attributable to the income of the Issuer and its
Restricted Subsidiaries and, to the extent of the amount actually
received from the Unrestricted Subsidiaries, in amounts required to
pay such taxes to the extent attributable to the income of the
Unrestricted Subsidiaries, provided, however, that in each case the
amount of such payments in any fiscal year does not exceed the
amount that the Issuer and the Restricted Subsidiaries would be
required to pay in respect of federal, state and local taxes for
such fiscal year were the Issuer and the Restricted Subsidiaries to
pay such taxes as a stand-alone taxpayer;
(C) customary salary, bonus and other benefits payable to
officers and employees of any direct or indirect parent corporation
of the Issuer to the extent such salaries, bonuses and other
benefits are attributable to the ownership or operation of the
Issuer and its Restricted Subsidiaries;
(D) general corporate overhead expenses (including
professional and administrative expenses) for any direct or indirect
parent corporation of the Issuer to the extent such expenses are
attributable to the ownership or operation of the Issuer and its
Restricted Subsidiaries; and
(E) fees and expenses other than to Affiliates related to an
unsuccessful equity or debt offering not prohibited by this
Indenture;
(13) cash dividends or other distributions on the Issuer's or any
Restricted Subsidiary's Capital Stock used to, or the making of loans, the
proceeds of which will be used to, fund the payment of fees and expenses
incurred in connection with the Transactions, the offering of the Initial
Securities, or owed to Affiliates, in connection with the Transactions;
(14) the repurchase, redemption or other acquisition or retirement
for value of any Subordinated Indebtedness pursuant to provisions similar
to Sections 4.09 and 4.13; provided that a Change of Control Offer or
Asset Sale Offer, as applicable, has been made and all Securities tendered
by Holders in connection with a Change of Control Offer or Asset Sale
Offer, as applicable, have been repurchased, redeemed or acquired for
value;
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(15) the declaration and payment of dividends to Holdco of the net
proceeds received by the Issuer from the sale of Securities and borrowings
under the Credit Agreement on the Issue Date, the proceeds of which will
be used as described in the Offering Memorandum; or
(16) cash dividends or distributions of the Solid Edge Excess
Proceeds; provided that immediately after giving effect to such Restricted
Payment, the Leverage Ratio would not exceed 3.75 to 1.00;
provided, however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (5), (6), (7), (9), (11), (14) and
(16) above, no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof.
(c) 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 the Issuer or such
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 4.11 will be determined in good faith by the Board of Directors of the
Issuer. The Issuer's determination must be based upon an opinion or appraisal
issued by an Independent Financial Advisor if the fair market value exceeds
$25.0 million.
(d) The Issuer will not permit any Unrestricted Subsidiary to become
a Restricted Subsidiary except pursuant to the second to last sentence of the
definition of "Unrestricted Subsidiary." For purposes of designating any
Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding investments
by the Issuer and the Restricted Subsidiaries (except to the extent repaid) in
the Subsidiary so designated will be deemed to be Restricted Payments in an
amount determined as set forth in the second paragraph of the definition of
"Investments." Such designation will be permitted only if a Restricted Payment
in such amount would be permitted at such time under this Section 4.11 or the
definition of "Permitted Investments" and if such Subsidiary otherwise meets the
definition of an "Unrestricted Subsidiary."
SECTION 4.12. Liens.
(a) The Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien (other than Permitted Liens) that secures obligations under any
Indebtedness ranking pari passu with or subordinated to the Securities or a
related Guarantee on any asset or property of the Issuer or any such Restricted
Subsidiary, or any income or profits therefrom, or assign or convey any right to
receive income therefrom, unless:
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(1) in the case of Liens securing Indebtedness subordinated to the
Securities or the Guarantees, the Securities and any related Guarantees
are secured by a Lien on such property, assets or proceeds that is senior
in priority to such Liens; or
(2) in all other cases, the Securities and any related Guarantees
are equally and ratably secured.
(b) Notwithstanding the foregoing, Section 4.12(a) shall not apply
to:
(i) Liens existing on the Issue Date to the extent and in the manner
such Liens are in effect on the Issue Date;
(ii) Liens securing the Securities and the related Guarantees and
the Exchange Securities (including Exchange Securities issued in exchange
for Additional Securities issued in accordance with the terms of this
Indenture) and the related Guarantees;
(iii) Liens securing Senior Debt or Guarantor Senior Debt and the
related guarantees of such Senior Debt or Guarantor Senior Debt; and
(iv) Permitted Liens.
SECTION 4.13. Asset Sales.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) 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;
(2) in the case of Asset Sales involving consideration in excess of
$10.0 million, the fair market value is determined by the Issuer's Board
of Directors and evidenced by a Board Resolution set forth in an Officers'
Certificate delivered to the Trustee; and
(3) except for any Permitted Asset Swap, at least 75% of the
consideration received in the Asset Sale by the Issuer or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.
For purposes of clause (3) above, the amount of (i) any liabilities (as shown on
the Issuer's or such Restricted Subsidiary's most recent balance sheet or in the
notes thereto) of the Issuer or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Securities or the
Guarantees) that are assumed by the transferee of any such assets and from
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which the Issuer and all Restricted Subsidiaries have been validly released by
all creditors in writing, (ii) any securities received by the Issuer or such
Restricted Subsidiary from such transferee that are converted by the Issuer or
such Restricted Subsidiary into cash (to the extent of the cash received) within
180 days following the closing of such Asset Sale and (iii) any Designated
Noncash Consideration received by the Issuer or any of its Restricted
Subsidiaries in such Asset Sale having an aggregate fair market value (as
determined in good faith by the Board of Directors of the Issuer), taken
together with all other Designated Noncash Consideration received pursuant to
this clause (iii) that is at that time outstanding, not to exceed the greater of
(x) $50.0 million and (y) 2.0% of Total Assets at the time of the receipt of
such Designated Noncash Consideration (with the fair market value of each item
of Designated Noncash Consideration being measured at the time received without
giving effect to subsequent changes in value), shall be deemed to be cash for
purposes of this Section 4.13(a) and for no other purpose.
(b) Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Issuer may apply those Net Proceeds at its option:
(1) to permanently reduce Obligations under Senior Debt of the
Issuer (and to correspondingly reduce commitments with respect thereto) or
Indebtedness that ranks pari passu with the Securities (provided that if
the Issuer shall so reduce Obligations under such Indebtedness of the
Issuer that ranks pari passu with the Securities, it will equally and
ratably reduce Obligations under the Securities by making an offer (in
accordance with the procedures set forth below for an Asset Sale Offer) to
all Holders to purchase at a purchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest and Additional Interest,
if any, on the pro rata principal amount of Securities) or Indebtedness of
a Restricted Subsidiary, in each case, other than Indebtedness owed to the
Issuer or an Affiliate of the Issuer;
(2) to an investment in (A) any one or more businesses; provided
that such investment in any business is in the form of the acquisition of
Capital Stock and results in the Issuer or a Restricted Subsidiary owning
an amount of the Capital Stock of such business such that it constitutes a
Restricted Subsidiary, (B) capital expenditures or (C) other assets, in
each of (A), (B) and (C), used or useful in a Permitted Business; and/or
(3) to an investment in (A) any one or more businesses; provided
that such investment in any business is in the form of the acquisition of
Capital Stock and it results in the Issuer or a Restricted Subsidiary
owning an amount of the Capital Stock of such business such that it
constitutes a Restricted Subsidiary, (B) properties or (C) assets that, in
each of (A), (B) and (C), replace the businesses, properties and assets
that are the subject of such Asset Sale.
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(c) When the aggregate amount of Net Proceeds not applied or
invested in accordance with the preceding paragraph ("EXCESS PROCEEDS") exceeds
$20.0 million, the Issuer will make an offer (an "ASSET SALE OFFER") to all
Holders and holders of Indebtedness that ranks pari passu with the Securities
and contains provisions similar to those set forth in this Indenture with
respect to offers to purchase with the proceeds of sales of assets to purchase,
on a pro rata basis, the maximum principal amount of Securities and such other
pari passu Indebtedness that may be purchased out of the Excess Proceeds (the
"ASSET SALE OFFER AMOUNT"). The offer price in any Asset Sale Offer will be
equal to 100% of principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the date of purchase (the "ASSET SALE PAYMENT"),
and will be payable in cash.
(d) Pending the final application of any Net Proceeds, the Issuer
may temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
(e) If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Issuer may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Securities tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee will select the Securities to be purchased on a pro rata
basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds
will be reset at zero.
(f) Upon the commencement of an Asset Sale Offer, the Issuer shall
send, by first class mail, a notice to the Trustee and to each Holder at its
registered address. The notice shall contain all instructions and materials
necessary to enable such Holder to tender Securities pursuant to the Asset Sale
Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section
4.13;
(2) the Asset Sale Offer Amount, the Asset Sale Payment and the date
on which Securities tendered and accepted for payment shall be purchased,
which date shall be at least 30 days and no later than 60 days from the
date such notice is mailed (the "ASSET SALE PAYMENT DATE");
(3) that any Securities not tendered or accepted for payment shall
continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any
Securities accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Asset Sale Payment Date;
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(5) that Holders electing to have a Security purchased pursuant to
any Asset Sale Offer shall be required to surrender the Security, with the
form entitled "Option of Holder To Elect Purchase" on the reverse of the
Securities completed, or transfer such Security by book-entry transfer, to
the Paying Agent at the address specified in the notice at least three
days before the Asset Sale Payment Date;
(6) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Asset Sale Payment Date, a notice setting forth the name of the Holder,
the principal amount of the Security the Holder delivered for purchase and
a statement that such Holder is withdrawing such Holder's election to have
such Security purchased;
(7) that, if the aggregate principal amount of Securities
surrendered by Holders exceeds the Asset Sale Offer Amount, the Issuer
shall select the Securities to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Issuer so that only
Securities in denominations of $1,000 or integral multiples of $1,000
shall be purchased); and
(8) that Holders whose Securities were purchased only in part shall
be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered (or transferred by book-entry
transfer); provided that such Securities shall be in denominations of
$1,000 or integral multiples $1,000.
(g) On the Asset Sale Payment Date, the Issuer shall, to the extent
lawful: (1) accept for payment all Securities or portions thereof properly
tendered pursuant to the Asset Sale Offer; (2) deposit with the Paying Agent
U.S. Legal Tender and/or U.S. Government Securities sufficient to pay the Asset
Sale Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities so accepted
together with an Officers' Certificate stating the aggregate principal amount of
Securities or portions thereof being repurchased by the Issuer. The Issuer shall
publicly announce the results of the Asset Sale Offer on the Asset Sale Payment
Date.
(h) The Paying Agent shall promptly mail to each Holder so tendered
the Asset Sale Payment for such Securities, and the Trustee shall promptly
authenticate pursuant to an Issuer Order and mail (or cause to be transferred by
book entry) to each Holder a new Security equal in principal amount to any
unrepurchased portion of the Securities surrendered, if any; provided that each
such new Security shall be in a principal amount of $1,000 or an integral
multiple of $1,000. However, if the Asset Sale Payment Date is on or after an
interest Record Date and on or before the related Interest Payment Date, any
accrued and unpaid interest shall be paid to the Person in whose name a Security
is registered at the close of business on such Record Date, and no additional
interest shall be payable to Holders who tender Securities pursuant to the Asset
Sale Offer.
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(i) 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 each
repurchase of Securities pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.13, the Issuer will comply with the applicable securities laws and regulations
and will not be deemed to have breached its obligations under this Section 4.13
by virtue of such conflict.
SECTION 4.14. Transactions with Affiliates.
(a) The Issuer will not, and will not permit any of its 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, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each, an "AFFILIATE TRANSACTION") involving aggregate
consideration in excess of $3.5 million, unless:
(1) the Affiliate Transaction is on terms that are no less favorable
to the Issuer or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by 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 $10.0 million, a Board Resolution approving such Affiliate
Transaction set forth in an Officers' Certificate certifying that
such Affiliate Transaction complies with this Section 4.14 and that
such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $50.0 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view
issued by an Independent Financial Advisor.
(b) The restrictions set forth in Section 4.14(a) do not apply to:
(1) transactions between or among the Issuer and/or any Restricted
Subsidiary or any entity that becomes a Restricted Subsidiary as a result
of such transaction;
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(2) Restricted Payments (other than pursuant to clause (7) of
Section 4.11(b)) and Permitted Investments (other than pursuant to clauses
(3), (10), (14) and (16) of the definition thereof) permitted by this
Indenture;
(3) the payment to the Sponsors and any of their Affiliates of
annual management, consulting, monitoring and advisory fees pursuant to
the Management Agreement in an aggregate amount in any fiscal year not to
exceed $3.0 million and Termination Fees and related indemnities and
reasonable expenses;
(4) the payment of reasonable and customary fees paid to, and
indemnities provided on behalf of, officers, directors, employees or
consultants of the Issuer, any of its direct or indirect parent
corporations or any Restricted Subsidiary, as determined in good faith by
the Board of Directors of the Issuer or senior management thereof;
(5) the payment by the Issuer or any Restricted Subsidiary to the
Sponsors and any of their Affiliates for any financial advisory,
financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in
connection with acquisitions or divestitures, which payments are approved
by a majority of the members of the Board of Directors of the Issuer or a
majority of the disinterested members of the Board of Directors of the
Issuer, in each case in good faith;
(6) transactions in which the Issuer or any Restricted Subsidiary
delivers to the Trustee a letter from an Independent Financial Advisor
stating that such transaction is fair to the Issuer or such Restricted
Subsidiary from a financial point of view;
(7) payments or loans (or cancellations of loans) to employees or
consultants of the Issuer or any of its direct or indirect parent
corporations or any Restricted Subsidiary which are approved by a majority
of the Board of Directors of the Issuer in good faith and which are
otherwise permitted under this Indenture;
(8) payments made or performance under any agreement as in effect on
the Issue Date (other than the Management Agreement and Stockholders
Agreement, but including, without limitation, each of the other agreements
entered into in connection with the Transactions) or any amendment thereto
(so long as any such amendment is not less advantageous to the Holders in
any material respect than the original agreement as in effect on the Issue
Date);
(9) the existence of, or the performance by the Issuer or any of its
Restricted Subsidiaries of its obligations under the terms of, the
Stockholders Agreement (including any registration rights agreement or
purchase agreements related thereto to which it is a party as of the Issue
Date and any similar agreement
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that it may enter into thereafter); provided, however, that the existence
of, or the performance by the Issuer or any of its Restricted Subsidiaries
of its obligations under, any future amendment to the Stockholders
Agreement or under any similar agreement entered into after the Issue Date
shall only be permitted by this clause (9) to the extent that the terms of
any such existing agreement, together with all amendments thereto, taken
as a whole, or new agreement are not otherwise more disadvantageous to
Holders in any material respect than the original agreement as in effect
on the Issue Date;
(10) (x) the Transactions and the payment of all fees and expenses
related to the Transactions and (y) the payment of bonuses or the issuance
of equity to management of the Issuer or any of its Subsidiaries upon
consummation of the Transactions in an aggregate amount not to exceed $4.0
million;
(11) transactions with customers, clients, suppliers, or purchasers
or sellers of goods or services, in each case in the ordinary course of
business and otherwise in compliance with the terms of this Indenture that
are fair to the Issuer or the Restricted Subsidiaries, in the reasonable
determination of the members of the Board of Directors of the Issuer or
the senior management thereof, or are on terms at least as favorable as
would reasonably have been entered into at such time with an unaffiliated
party; and
(12) if otherwise permitted hereunder, the issuance of Equity
Interests (other than Disqualified Stock) of Holdco to any Permitted
Holder or to any director, officer, employee or consultant of the Issuer
or Holdco or their Subsidiaries or of the Issuer to Holdco or to any
Permitted Holder or to any director, officer, employee or consultant of
the Issuer or Holdco or their Subsidiaries.
SECTION 4.15. Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any such
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Issuer or any of its Restricted Subsidiaries, or with respect
to any other interest or participation in, or measured by, its profits, or
pay any Indebtedness owed to the Issuer or any of its Restricted
Subsidiaries;
(2) make loans or advances to the Issuer or any of its Restricted
Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the
Issuer or any of its Restricted Subsidiaries.
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(b) However, the preceding restrictions in Section 4.15(a) will not
apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant
to the Credit Agreement or related documents or (y) on the Issue Date,
including, without limitation, pursuant to Existing Indebtedness and
related documentation;
(2) this Indenture, the Securities and the Guarantees (including any
Exchange Securities and related Guarantees);
(3) purchase money obligations or other obligations described in
Section 4.10(b)(4) for property acquired in the ordinary course of
business that in each case impose restrictions of the nature discussed in
clause (3) of Section 4.15(a) on the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the
Issuer or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), 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;
(6) contracts for the sale of assets, including, without limitation,
customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;
(7) secured Indebtedness otherwise permitted to be incurred pursuant
to Sections 4.10 and 4.12 that limits the right of the debtor to dispose
of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any
Restricted Subsidiary that is a Guarantor that is incurred subsequent to
the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a
Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to
clauses (1), (11) or (18) of Section 4.10(b);
(10) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business;
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(11) customary provisions contained in leases, subleases, licenses
or asset sale agreements and other agreements; and
(12) any encumbrances or restrictions of the type referred to in
clauses (1), (2) and (3) of Section 4.15(a) imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (11) of this Section 4.15(b), provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good
faith judgment of the Issuer's Board of Directors, no more restrictive,
taken as a whole, with respect to such dividend and other payment
restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.
SECTION 4.16. Additional Subsidiary Guarantees.
The Issuer will cause each Restricted Subsidiary that Guarantees any
Indebtedness of the Issuer or any of its Guarantors to execute and deliver to
the Trustee a Guarantee pursuant to which such Restricted Subsidiary will
unconditionally Guarantee, on a joint and several basis, the full and prompt
payment of the principal of, premium, if any and interest on the Securities on a
senior subordinated basis and all other obligations under this Indenture.
Notwithstanding the foregoing, in the event any Guarantor is released and
discharged in full from all of its obligations under Guarantees of (1) each
Credit Agreement and (2) all other Indebtedness of the Issuer and its Restricted
Subsidiaries, then the Guarantee of such Guarantor shall be automatically and
unconditionally released or discharged; provided, that such Restricted
Subsidiary has not incurred any Indebtedness or issued any Preferred Stock in
reliance on its status as a Guarantor under Section 4.10 unless such Guarantor's
obligations under such Indebtedness or Preferred Stock, as the case may be, so
incurred are satisfied in full and discharged or are otherwise permitted under
one of the exceptions available at the time of such release to Restricted
Subsidiaries under Section 4.10(b).
Each Guarantee will be limited to an amount not to exceed the
maximum amount that can be guaranteed by that Restricted Subsidiary without
rendering the Guarantee, as it relates to such Restricted Subsidiary, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
Each Guarantee shall be released in accordance with Article Eleven.
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SECTION 4.17. Reports to Holders.
(a) Whether or not required by the Commission, so long as any
Securities are outstanding, if not filed electronically with the Commission
through the Commission's Electronic Data Gathering, Analysis, and Retrieval
System (or any successor system), the Issuer will furnish to the Holders, within
the time periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Issuer were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" and, with respect to the annual information only, a report
on the annual financial statements by the Issuer's certified independent
accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Issuer were required to file such reports.
(b) In addition, whether or not required by the Commission, after
the consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement, the Issuer will file a copy of all of the information
and reports referred to in clauses (1) and (2) above with the Commission for
public availability within the time periods specified in the Commission's rules
and regulations (unless the Commission will not accept such a filing) and make
such information available to securities analysts and prospective investors upon
request. In addition, the Issuer has agreed that, for so long as any Securities
remain outstanding, it will furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) In addition, if at any time Holdco becomes a Guarantor (there
being no obligation of Holdco to do so), holds no material assets other than
cash, Cash Equivalents and the Capital Stock of the Issuer or of any direct or
indirect parent corporation of the Issuer (and performs the related incidental
activities associated with such ownership) and complies with the requirements of
Rule 3-10 of Regulation S-X promulgated by the Commission (or any successor
provision), the reports, information and other documents required to be filed
and furnished to Holders pursuant to this Section 4.17 may, at the option of the
Issuer, be filed by and be those of Holdco rather than the Issuer.
(d) Notwithstanding the foregoing, such requirements shall be deemed
satisfied prior to the commencement of the Registered Exchange Offer or the
effectiveness of the Shelf Registration Statement by the filing with the
Commission of the Exchange Offer Registration Statement and/or Shelf
Registration Statement, and any amendments thereto, with such financial
information that satisfies Regulation S-X of the Securities Act.
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If the Issuer has designated any of its Subsidiaries as Unrestricted
Subsidiaries and such Unrestricted Subsidiaries, either individually or
collectively, would otherwise have been a Significant Subsidiary, then the
quarterly and annual financial information required by this Section 4.17 shall
include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes to the financial statements and in Management's
Discussion and Analysis of Results of Operations and Financial Condition, of the
financial condition and results of operations of the Issuer and the Restricted
Subsidiaries of the Issuer.
SECTION 4.18. Limitation on Layering.
The Issuer will not, and will not permit any Restricted Subsidiary
that is a Guarantor to, directly or indirectly, incur any Indebtedness that is
or purports to be by its terms (or by the terms of any agreement governing such
Indebtedness) contractually subordinated or junior in right of payment to any
Senior Debt (including Acquired Debt) of the Issuer or Guarantor Senior Debt
(including Acquired Debt) of such Restricted Subsidiary, as the case may be,
unless such Indebtedness is either
(1) pari passu in right of payment with the Securities or the
Guarantees; or
(2) subordinate in right of payment to the Securities or the
Guarantees.
For purposes of the foregoing, no Indebtedness will be deemed to be
contractually subordinated or junior in right of payment to any other
Indebtedness solely by virtue of being unsecured or by virtue of the fact that
the holders of Secured Indebtedness have entered into intercreditor or similar
arrangements giving one or more of such holders priority over the other holders
in the collateral held by them.
SECTION 4.19. Business Activities.
The Issuer will not, and will not permit any Restricted Subsidiary
to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Issuer and its Subsidiaries taken as a
whole.
SECTION 4.20. Payments for Consent.
The Issuer will not, and will not permit any of its 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 Securities
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.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation, or Sale of Assets.
(a) The Issuer may not, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Issuer is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Issuer and its
Subsidiaries, taken as a whole, in one or more related transactions, to another
Person, unless:
(1) either: (a) the Issuer is the surviving corporation; 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, conveyance
or other disposition has been made is a corporation organized or existing
under the laws of the United States, any state of the United States, the
District of Columbia or any territory thereof (the Issuer or such Person,
as the case may be, being herein called the "SUCCESSOR COMPANY");
(2) the Successor Company (if other than the Issuer) assumes all the
obligations of the Issuer under the Securities, this Indenture and the
Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of
Default exists;
(4) immediately after giving pro forma effect to such transaction
and any related financing transactions, as if the same had occurred at the
beginning of the applicable four-quarter period, either
(a) the Successor Company would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Coverage Ratio
Exception; or
(b) the Fixed Charge Coverage Ratio for the Successor Company
and its Restricted Subsidiaries would be greater than such ratio for
the Issuer and its Restricted Subsidiaries immediately prior to such
transaction; and
(5) each Guarantor, unless it is the other party to the transactions
described above, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture
and the Securities.
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For purposes of this Section 5.01, the sale, lease, conveyance,
assignment, transfer or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Issuer, which
properties and assets, if held by the Issuer instead of such Subsidiaries, would
constitute all or substantially all of the properties and assets of the Issuer
on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Issuer.
The predecessor company will be released from its obligations under
this Indenture and the Successor Company will succeed to, and be substituted
for, and may exercise every right and power of, the Issuer under this Indenture,
but, in the case of a lease of all or substantially all its assets, the
predecessor will not be released from the obligation to pay the principal of and
interest on the Securities.
This Section 5.01 will not apply to a sale, assignment, transfer,
conveyance or other disposition of assets between or among the Issuer and its
Restricted Subsidiaries. Notwithstanding the foregoing clauses (3) and (4), (i)
any Restricted Subsidiary may consolidate with, merge into or transfer all or
part of its properties and assets to the Issuer and (ii) the Issuer may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Issuer in another state of the United States to realize tax benefits so long as
the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not
increased thereby. Notwithstanding anything to the contrary in this Indenture,
the merger of UGS Corp. into UGS PLM Solutions Inc. shall be permitted.
(b) The Issuer will deliver to the Trustee prior to the consummation
of each proposed transaction an Officers' Certificate certifying that the
conditions set forth above are satisfied and an Opinion of Counsel, which
opinion may contain customary exceptions and qualifications, that the proposed
transaction and the supplemental indenture, if any, comply with this Indenture.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following is an "EVENT OF DEFAULT":
(1) the Issuer defaults in payment when due and payable, upon
redemption, acceleration or otherwise, of principal of, or premium, if
any, on the Securities, whether or not prohibited by Article Ten;
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(2) the Issuer defaults in the payment when due of interest or
Additional Interest, if any, on or with respect to the Securities and such
default continues for a period of 30 days, whether or not prohibited by
Article Ten;
(3) the Issuer defaults in the performance of, or breaches any
covenant, warranty or other agreement contained in, this Indenture (other
than a default in the performance or breach of a covenant, warranty or
agreement which is specifically dealt with in clauses (1) or (2) above)
and such default or breach continues for a period of 60 days after the
notice specified below;
(4) default under any mortgage, indenture or instrument under which
there is issued or by which there is secured or evidenced any Indebtedness
for money borrowed by the Issuer or any Restricted Subsidiary or the
payment of which is guaranteed by the Issuer or any Restricted Subsidiary
(other than Indebtedness owed to the Issuer or a Restricted Subsidiary),
whether such Indebtedness or guarantee now exists or is created after the
Issue Date, if (A) such default either (1) results from the failure to pay
any such Indebtedness at its stated final maturity (after giving effect to
any applicable grace periods) or (2) relates to an obligation other than
the obligation to pay principal of any such Indebtedness at its stated
final maturity and results in the holder or holders of such Indebtedness
causing such Indebtedness to become due prior to its stated maturity and
(B) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at stated final maturity (after giving effect to any applicable
grace periods), or the maturity of which has been so accelerated,
aggregate $20.0 million (or its foreign currency equivalent) or more at
any one time outstanding;
(5) the Issuer or any Significant Subsidiary pursuant to or within
the meaning of any 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,
(D) makes a general assignment for the benefit of its
creditors,
(E) takes any comparable action under any foreign laws
relating to insolvency,
(F) generally is not able to pay its debts as they become due,
or
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(G) takes any corporate action to authorize or effect any of
the foregoing;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Issuer or any Significant
Subsidiary or for all or substantially all of the property of the
Issuer or any Significant Subsidiary, or
(C) orders the liquidation of the Issuer or any Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days;
(7) the failure by the Issuer or any Significant Subsidiary to pay
final judgments (other than any judgments covered by insurance policies
issued by reputable and creditworthy insurance companies) aggregating in
excess of $20.0 million, which final judgments remain unpaid, undischarged
and unstayed for a period of more than 60 days after such judgment becomes
final, and, with respect to any such judgments covered by insurance, an
enforcement proceeding has been commenced by any creditor upon such
judgment or decree which is not promptly stayed; or
(8) the Guarantee of a Significant Subsidiary or any group of
Subsidiaries that, taken together as of the date of the most recent
audited financial statements of the Issuer, would constitute a Significant
Subsidiary ceases to be in full force and effect (except as contemplated
by the terms hereof) or any Guarantor denies or disaffirms its obligations
under this Indenture or any Guarantee other than by reason of the release
of the Guarantee in accordance with this Indenture and such Default
continues for 10 days.
SECTION 6.02. Acceleration.
If an Event of Default specified in Sections 6.01(5) and (6) above
occurs with respect to the Issuer and is continuing, then all unpaid principal
of, and premium, if any, and accrued and unpaid interest on all of the
outstanding Securities shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
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If any other Event of Default shall occur and be continuing, the
Trustee or the Holders of at least 25% in principal amount of outstanding
Securities under this Indenture may declare the principal of and accrued
interest on such Securities to be due and payable by notice in writing to the
Issuer and the Trustee specifying the respective Event of Default and that it is
a "notice of acceleration" (the "ACCELERATION NOTICE"), and the same shall
become immediately due and payable upon the first to occur of an acceleration
under the Credit Agreement and five Business Days after receipt by the Issuer
and the Representative under the Credit Agreement of such Acceleration Notice
but only if such Event of Default is then continuing.
At any time after a declaration of acceleration with respect to the
Securities as described in the two preceding paragraphs, the Holders of a
majority in principal amount of the Securities may rescind and cancel such
declaration and its consequences:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely
because of the acceleration;
(3) to the extent the payment of such interest is lawful, if
interest on overdue installments of interest and overdue principal, which
has become due otherwise than by such declaration of acceleration, has
been paid;
(4) if the Issuer has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances;
and
(5) in the event of the cure or waiver of an Event of Default of the
type described in Sections 6.01(5) and (6), if the Trustee shall have
received an Officers' Certificate and an Opinion of Counsel that such
Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies.
(a) If a Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by
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the Trustee or any Securityholder in exercising any right or remedy accruing
upon a Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by law.
(c) In the event of any Event of Default specified in clause (4) of
Section 6.01, such Event of Default and all consequences thereof (excluding,
however, any resulting payment default) will be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders, if within 20
days after such Event of Default arose the Issuer delivers an Officers'
Certificate to the Trustee stating that (x) the Indebtedness or guarantee that
is the basis for such Event of Default has been discharged or (y) the holders
thereof have rescinded or waived the acceleration, notice or action (as the case
may be) giving rise to such Event of Default or (z) the default that is the
basis for such Event of Default has been cured.
(d) Holders may not enforce this Indenture or the Securities except
as provided in this Indenture and under the TIA. Subject to the provisions of
this Indenture relating to the duties of the Trustee, the Trustee is under no
obligation to exercise any of its rights or powers under this Indenture at the
request, order or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity.
SECTION 6.04. Waiver of Defaults.
Provided the Securities are not then due and payable by reason of a
declaration of acceleration, the Holders of a majority in aggregate principal
amount of Securities at the time outstanding may on behalf of the Holders of all
the Securities waive any Default with respect to such Securities and its
consequences by providing written notice thereof to the Issuer and the Trustee,
except a Default (1) in the payment of interest on or the principal of any
Security or (2) in respect of a covenant or provision hereof which under this
Indenture cannot be modified or amended without the consent of the Holder of
each outstanding Security affected. In the case of any such waiver, the Issuer,
the Trustee and the Holders will be restored to their former positions and
rights under this Indenture, respectively; provided that no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. Subject to Section 7.01, however, the Trustee may refuse
to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; provided
that the
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Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
against any loss or expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or
the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and provide to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer and the provision of indemnity;
and
(5) during such 45-day period the Holder or Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, 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 the Holder.
SECTION 6.08. Collection Suit by Trustee.
If a Default in payment of principal or interest specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer
or any other obligor on the Securities for the whole
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amount of principal and accrued interest and fees remaining unpaid, together
with interest on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate per annum borne by the Securities 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 may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and the Holders allowed in any
judicial proceedings relating to the Issuer, its creditors or its property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings 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 compensation, expenses, disbursements
and advances of the Trustee, its agent and counsel, and any other amounts due
the Trustee under Section 7.07. 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 Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding. The Trustee shall be entitled to participate as a member of any
official committee of creditors in the matters as it deems necessary or
advisable.
SECTION 6.10. Priorities.
Subject to the provisions of Article Ten, if the Trustee collects
any money or property pursuant to this Article Six, it shall pay out the money
or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for interest accrued on the Securities, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities for interest;
THIRD: to Holders for principal amounts due and unpaid on the
Securities, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Securities for principal; and
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FOURTH: to the Issuer or, if applicable, the Guarantors, as their
respective interests may appear.
The Trustee, upon prior notice to the Issuer, 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 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 pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of a Default:
(1) The Trustee need perform only those duties as are specifically
set forth herein or in the TIA and no duties, covenants, responsibilities
or obligations shall be implied in this Indenture against the Trustee.
(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 (including Officers'
Certificates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee
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shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein, the Trustee may
not be relieved from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to this Section
7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(g) In the absence of bad faith, negligence or willful misconduct on
the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely conclusively on any document believed by it
to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the
document.
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(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel, which shall conform to
the provisions of Section 12.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other
than an agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel of its selection and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any
Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice to
the Issuer, to examine the books, records, and premises of the Issuer,
personally or by agent or attorney at the sole cost of the Issuer.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as duties.
(j) Except with respect to Section 4.01, the Trustee shall have no
duty to inquire as to the performance of the Issuer with respect to the
covenants contained in Article Four. In addition, the Trustee shall not be
deemed to have knowledge of an Event of Default except (i) any Default or
Event of Default occurring pursuant to
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Sections 4.01, 6.01(1) or 6.01(2) or (ii) any Default or Event of Default
of which the Trustee shall have received written notification or obtained
actual knowledge.
(k) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
(l) Delivery of reports, information and documents to the Trustee
under Section 4.17 is for informational purposes only and the Trustee's
receipt of the foregoing shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificate.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Issuer, its
Subsidiaries or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Issuer's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuer in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication. The
Trustee makes no representations with respect to the effectiveness or adequacy
of this Indenture.
SECTION 7.05. Notice of Default.
If a Default occurs and is continuing and the Trustee receives
actual notice of such Default, the Trustee shall mail to each Holder notice of
the uncured Default within 60 days after such Default occurs. Except in the case
of a Default in payment of principal of, or interest on, any Security, including
an accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or the Asset Sale Payment
Date pursuant to an Asset Sale Offer, the Trustee may withhold the notice if and
so long as the Board of Directors, the executive committee, or a trust committee
of
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directors and/or Responsible Officers, of the Trustee in good faith determines
that withholding the notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with May 15, 2005, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder a brief report dated as of such date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b), 313(c) and
313(d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Issuer and filed with the Commission and each securities exchange,
if any, on which the Securities are listed.
The Issuer shall notify the Trustee if the Securities become listed
on any securities exchange or of any delisting thereof and the Trustee shall
comply with TIA Section 313(d).
SECTION 7.07. Compensation and Indemnity.
The Issuer shall pay to the Trustee from time to time such
compensation as the Issuer and the Trustee shall from time to time agree in
writing for its services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall reimburse the Trustee upon request for all reasonable disbursements,
expenses and advances (including reasonable fees and expenses of counsel)
incurred or made by it in addition to the compensation for its services, except
any such disbursements, expenses and advances as may be attributable to the
Trustee's negligence, bad faith or willful misconduct. Such expenses shall
include the reasonable fees and expenses of the Trustee's agents and counsel.
The Issuer shall indemnify each of the Trustee or any predecessor
Trustee and its agents, employees, officers, stockholders and directors for, and
hold them harmless against, any and all loss, damage, claims including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee), liability or expense incurred by them except for such actions to the
extent caused by any negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of this
trust including the costs and expenses of enforcing this Indenture or a
Guarantee against the Issuer or a Guarantor (including this Section 7.07) and
the reasonable costs and expenses of defending themselves against or
investigating any claim or liability in connection with the exercise or
performance of any of the Trustee's rights, powers or duties hereunder (whether
asserted by the Issuer, any Guarantor, any Holder or any other Person). The
Trustee shall notify the Issuer promptly of any claim asserted against the
Trustee or any of its agents,
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employees, officers, stockholders and directors for which it may seek indemnity.
The Issuer may, subject to the approval of the Trustee (which approval shall not
be unreasonably withheld), defend the claim and the Trustee shall cooperate in
the defense. The Trustee and its agents, employees, officers, stockholders and
directors subject to the claim may have separate counsel and the Issuer shall
pay the reasonable fees and expenses of such counsel; provided, however, that
the Issuer will not be required to pay such fees and expenses if, subject to the
approval of the Trustee (which approval shall not be unreasonably withheld), it
assumes the Trustee's defense and there is no conflict of interest between the
Issuer and the Trustee and its agents, employees, officers, stockholders and
directors subject to the claim in connection with such defense as reasonably
determined by the Trustee. The Issuer need not pay for any settlement made
without its written consent. The Issuer need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Issuer's and the Guarantors' payment obligations in
this Section 7.07, the Trustee shall have a Lien prior to the Securities against
all money or property held or collected by the Trustee, in its capacity as
Trustee. The obligations of the Issuer and the Guarantors to the Trustee under
this Section shall not be subordinated to the payment of Senior Debt pursuant to
Article Ten or Section 11.02 except assets or money held in trust to pay
principal of or interest on particular Securities (with the exception of
Permitted Junior Securities and trusts established pursuant to Article Eight).
When the Trustee incurs expenses or renders services after a Default
specified in Section 6.01(5) or (6) occurs, such expenses and the compensation
for such services shall be paid to the extent allowed under any Bankruptcy Law
and are intended to constitute expenses of administration under any Bankruptcy
Law.
Notwithstanding any other provision in this Indenture, the foregoing
provisions of this Section 7.07 shall survive the satisfaction and discharge of
this Indenture or the appointment of a successor Trustee.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuer in
writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Issuer and the Trustee and
may appoint a successor Trustee. The Issuer may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
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 outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee at the expense of the Issuer.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee
shall have a combined capital and
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surplus of at least $150,000,000 as set forth in its most recent published
annual report of condition. In addition, if the Trustee is a corporation
included in a bank holding company system, the Trustee, independently of the
bank holding company, shall meet the capital requirements of TIA Section
310(a)(2). The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer are outstanding, if
the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
The provisions of TIA Section 310 shall apply to the Issuer and any other
obligor of the Securities.
SECTION 7.11. Preferential Collection of Claims Against the Issuer.
The Trustee, in its capacity as Trustee hereunder, shall comply with
TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Issuer's Obligations.
The Issuer may terminate its obligations under the Securities and
this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Securities previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment U.S. Legal Tender or U.S.
Government Securities, or a combination thereof, in such amount as is, in the
opinion of a nationally recognized firm of independent public accountants,
sufficient without consideration of reinvestment of such interest, to pay
principal of, premium, if any, and interest on the outstanding Securities to
maturity or redemption, has theretofore been deposited with the Trustee or the
Paying Agent in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer, as provided in Section 8.05) have been
delivered to the Trustee for cancellation and the Issuer has paid all sums
payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Issuer shall have
given notice to the Trustee and mailed a notice of redemption to each
Holder of the redemption of all of the Securities in accordance with the
provisions hereof or (ii) all Securities have otherwise become or will
become due and payable by reason of the mailing of a notice of redemption
or otherwise within one (1) year hereunder;
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(b) the Issuer shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders of that purpose, U.S. Legal Tender, non-callable
U.S. Government Securities, or a combination thereof, in amounts as is, in
the opinion of a nationally recognized firm of independent public
accountants, sufficient without consideration of reinvestment of such
interest, to pay and discharge the entire Indebtedness on the Securities
not delivered to the Trustee for cancellation for principal, premium, if
any, and Additional Interest, if any, and accrued interest on the
outstanding Securities to maturity or redemption; provided that the
Trustee shall have been irrevocably instructed to apply such U.S. Legal
Tender or U.S. Government Securities, or a combination thereof, to the
payment of said principal, premium, if any, and interest with respect to
the Securities; and provided, further, that from and after the time of
deposit, the U.S. Legal Tender or U.S. Government Securities, or
combination thereof, deposited shall not be subject to the rights of
holders of Senior Debt pursuant to the provisions of Article Ten;
(c) no Default or Event of Default with respect to this Indenture or
the Securities shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit (other than a Default
resulting from borrowing of funds to be applied to such deposit and the
grant of any Lien securing such borrowing) and such deposit will not
result in a breach or violation of, or constitute a default under, any
material instrument to which the Issuer is a party or by which it is
bound;
(d) the Issuer shall have paid all other sums payable by it
hereunder; and
(e) the Issuer shall have delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Securities at maturity or the Redemption Date, as the case
may be.
The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for or relating to the termination of the Issuer's
obligations under the Securities and this Indenture have been complied with.
Such Opinion of Counsel shall also state that such satisfaction and discharge
does not result in a default under the Credit Agreement or any other material
agreement or instrument then known to such counsel that binds or affects the
Issuer.
Subject to the next sentence and notwithstanding the foregoing
paragraph, the Issuer's obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01,
4.02, 7.07, 8.05 and 8.06 shall survive until the Securities are no longer
outstanding pursuant to the last paragraph of Section 2.08. After the Securities
are no longer outstanding, the Issuer's obligations in Sections 7.07, 8.05 and
8.06 shall survive.
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After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Issuer's obligations under the
Securities and this Indenture except for those surviving obligations specified
above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Issuer may, at its option and at any time, elect to have
either paragraph (b) or (c) below applied to all outstanding Securities upon
compliance with the conditions set forth in Section 8.03.
(b) Upon the Issuer's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Issuer and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.03, be
deemed to have been discharged from their obligations with respect to all
outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that
the Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities, which shall thereafter be deemed to
be "outstanding" only for the purposes of Section 8.04 hereof and the other
Sections of this Indenture (with respect to such Securities) referred to in (i)
and (ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture (with respect to such Securities) and the
Guarantors shall be deemed to have satisfied all of their obligations under the
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 shall survive until otherwise terminated or
discharged hereunder:
(i) the rights of Holders of outstanding Securities issued hereunder
to receive payments in respect of the principal of, or interest or premium
and Additional Interest, if any, on such Securities when such payments are
due from the trust referred to below;
(ii) the Issuer's obligations with respect to the Securities issued
hereunder concerning issuing temporary Securities, registration of
Securities, mutilated, destroyed, lost or stolen Securities and the
maintenance of an office or agency for payment and money for security
payments held in trust;
(iii) the rights, powers, trusts, duties and immunities of the
Trustee, and the Issuer's obligations in connection therewith; and
(iv) this Article Eight.
Subject to compliance with this Article Eight, the Issuer may
exercise its option under this Section 8.02(b) notwithstanding the prior
exercise of its option under Section 8.02(c) hereof.
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(c) Upon the Issuer's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Issuer and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.03 hereof,
be released from their obligations under the covenants contained in Sections
4.04, 4.05, 4.06, 4.07 and 4.09 through 4.20 and clause (4) of Section 5.01(a)
hereof with respect to the outstanding Securities on and after the date the
conditions set forth in Section 8.03 are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Securities shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder
(it being understood that such Securities shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Securities, the Issuer may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute an Event of Default under Section
6.01 hereof, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby. In addition, upon the Issuer's
exercise under paragraph (a) hereof of the option applicable to this paragraph
(c), subject to the satisfaction of the conditions set forth in Section 8.03
hereof, clauses (3), (4), (5) (with respect to a Significant Subsidiary), (6)
(with respect to a Significant Subsidiary) and (7) of Section 6.01 hereof shall
not constitute Events of Default.
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02(b) or 8.02(c) hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust,
for the benefit of the holders of the applicable Securities issued
hereunder, cash in U.S. Legal Tender, non-callable U.S. Government
Securities, or a combination thereof, in amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, or interest and premium and
Additional Interest, if any, on the outstanding Securities issued
hereunder on the Stated Maturity or on the applicable Redemption Date, as
the case may be, and the Issuer must specify whether the Securities are
being defeased to maturity or to a particular Redemption Date;
(2) in the case of an election under Section 8.02(b) hereof, the
Issuer has delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that (a) the Issuer has received
from, or there has been published by, the
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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
will confirm that, the holders of the respective outstanding Securities
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 8.02(c) hereof, the
Issuer has delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the holders of the respective
outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(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 borrowings) or insofar as Events of
Default resulting from the borrowing of funds or insolvency events are
concerned, at any time in the period ending on the 91st day after the date
of deposit;
(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 the Issuer or
any of its Restricted Subsidiaries is a party or by which the Issuer or
any of its Restricted Subsidiaries is bound;
(6) the Issuer must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Issuer with the intent of
defeating, hindering, delaying or defrauding creditors of the Issuer or
others; and
(7) the Issuer must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
SECTION 8.04. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Securities, deposited with it pursuant to this Article Eight,
and shall apply the deposited U.S. Legal Tender or the money from U.S.
Government Securities, in accordance with this Indenture to the payment of
principal of and interest on the Securities. The Trustee
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shall be under no obligation to invest said U.S. Legal Tender or U.S. Government
Securities, except as it may agree with the Issuer.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Securities, deposited pursuant to Section 8.03 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
Securities.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
request any U.S. Legal Tender or U.S. Government Securities, held by it as
provided in Section 8.03 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, 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 8.05. Repayment to the Issuer.
Subject to this Article Eight, the Trustee and the Paying Agent
shall promptly pay to the Issuer upon request any excess U.S. Legal Tender or
U.S. Government Securities, held by them at any time and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Issuer upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years; provided
that the Trustee or such Paying Agent, before being required to make any
payment, may at the expense of the Issuer cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Issuer. After payment to the Issuer, Holders entitled to such
money must look to the Issuer for payment as general creditors unless an
applicable law designates another Person.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Securities, in accordance with this Article Eight by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Eight until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender and U.S. Government Securities, in
accordance with this Article Eight; provided that if the Issuer has made any
payment of interest on or
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principal of any Securities because of the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the U.S. Legal Tender or U.S. Government Securities,
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
Subject to Section 9.03, without the consent of any Holder, the
Issuer, the Guarantors and the Trustee may amend or supplement this Indenture or
the Securities:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(3) to provide for the assumption of the Issuer's obligations to
Holders in the case of a merger or consolidation or sale of all or
substantially all of the Issuer's assets;
(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
under this Indenture of any Holder;
(5) to secure the Securities;
(6) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA;
(7) to add a Guarantee of the Securities, including, without
limitation, by Holdco; or
(8) to release a Guarantor upon its sale or designation as an
Unrestricted Subsidiary or other permitted release from its Guarantee;
provided that such sale, designation or release is in accordance with the
applicable provisions of this Indenture;
provided that the Issuer has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
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SECTION 9.02. With Consent of Holders.
(a) Subject to Sections 6.07 and 9.03, the Issuer, the Guarantors
and the Trustee, together, with the written consent of the Holder or Holders of
at least a majority in aggregate principal amount of the outstanding Securities
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities), may amend or supplement
this Indenture or the Securities without notice to any other Holders. Subject to
Sections 6.07 and 9.03, the Holder or Holders of a majority in aggregate
principal amount of then outstanding Securities may waive compliance with any
provision of this Indenture or the Securities (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities) without notice to any other Holders (except a default in
respect of the payment of principal or interest on the Securities).
(b) Notwithstanding Section 9.02(a), without the consent of each
Holder affected, an amendment, supplement or waiver, including a waiver pursuant
to Section 6.04, may not (with respect to any Securities held by a
non-consenting Holder):
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any
Security or alter the provisions with respect to the redemption of the
Securities (other than provisions of Sections 4.09 and 4.13);
(3) reduce the rate of or change the time for payment of interest on
any Security;
(4) waive a Default or Event of Default in the payment of principal,
or interest or premium, or Additional Interest, if any, on the Securities
(except a rescission of acceleration of the Securities by the Holders of
at least a majority in aggregate principal amount of the Securities with
respect to a nonpayment default and a waiver of the payment default that
resulted from such acceleration);
(5) make any Security payable in money other than that stated in the
Securities;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of, or interest or premium or Additional Interest, if any, on
the Securities;
(7) waive a redemption payment with respect to any Security (other
than a payment required by one of the provisions of Section 4.09 or
Section 4.13;
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(8) make any change in the preceding amendment and waiver
provisions; or
(9) modify the Guarantees in any manner adverse to the Holders.
(c) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuer shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuer to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.03. Effect on Senior Debt.
No amendment of, or supplement or waiver to, this Indenture shall
adversely affect the rights of any holder of Senior Debt under the subordination
provisions of this Indenture (including without limitation the provisions of
Article Ten and Section 11.02 hereof) and the defined terms as used therein
without the consent of such holder or its Representative.
SECTION 9.04. Compliance with TIA.
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture, the Securities or the
Subsidiary Guarantees shall comply with the TIA as then in effect.
SECTION 9.05. Revocation and Effect of Consents.
(a) Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by notice to the
Trustee or the Issuer received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
(b) The Issuer may, but shall not be obligated to, fix a Record Date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or
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waiver which record date shall be at least 30 days prior to the first
solicitation of such consent. If a record date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who were
Securityholders at such Record Date (or their duly designated proxies), and only
those Persons, shall be entitled to revoke any consent previously given, whether
or not such Persons continue to be Holders after such Record Date. No such
consent shall be valid or effective for more than 90 days after such Record
Date. The Issuer shall inform the Trustee in writing of the fixed Record Date if
applicable.
(c) After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (9) of Section 9.02(b), in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security; provided that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Security, on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates without the consent of such
Holder.
SECTION 9.06. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Issuer may require the Holder of the Security to deliver it to the
Trustee. The Issuer shall provide the Trustee with an appropriate notation on
the Security about the changed terms and cause the Trustee to return it to the
Holder at the Issuer's expense. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or waiver.
SECTION 9.07. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and constitutes the legal, valid and binding obligations of the Issuer
enforceable in accordance with its terms. Such Opinion of Counsel shall be at
the expense of the Issuer.
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ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinated to Senior Debt.
Anything herein to the contrary notwithstanding, the Issuer, for
itself and its successors, and each Holder, by his or her acceptance of
Securities, agrees that the payment of all Obligations owing to the Holders in
respect of the Securities is subordinated, to the extent and in the manner
provided in this Article Ten, to the prior payment in full in cash or Cash
Equivalents, or such payment duly provided for to the satisfaction of the
holders of Senior Debt, of all Obligations on Senior Debt (including the
Obligations with respect to the Credit Agreement, whether outstanding on the
Issue Date or thereafter incurred). Notwithstanding the foregoing, payments and
distributions made relating to the Securities from the trust established
pursuant to Article Eight shall not be so subordinated in right of payment, so
long as the conditions specified in Article Eight (without any waiver or
modification of the requirement that the deposits pursuant thereto do not
conflict with the terms of the Credit Agreement or any other Senior Debt) are
satisfied on the date of any deposit pursuant to said trust.
This Article Ten shall constitute a continuing offer to all Persons
who become holders of, or continue to hold, Senior Debt, and such provisions are
made for the benefit of the holders of Senior Debt and such holders are made
obligees hereunder and any one or more of them may enforce such provisions.
SECTION 10.02. Suspension of Payment When Designated Senior Debt Is in Default.
(a) If any default occurs and is continuing when payment is due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or fees or other amounts payable with respect to, any Designated
Senior Debt (a "PAYMENT DEFAULT"), then no payment or distribution of any kind
or character shall be made by or on behalf of the Issuer or any other Person on
its or their behalf with respect to any Obligations on or relating to the
Securities or to acquire, defease or redeem any of the Securities for cash or
assets or otherwise unless the default has been cured or waived; provided,
however, that the Issuer may pay the Securities without regard to the foregoing
if the Issuer and the Trustee receive written notice approving such payment from
the Representative of the holders of such Designated Senior Debt.
(b) If any other event of default (other than a Payment Default)
occurs and is continuing with respect to any Designated Senior Debt (as such
event of default is defined in the instrument creating or evidencing such
Designated Senior Debt) permitting the holders of such Designated Senior Debt
then outstanding to accelerate the maturity thereof (a "NON-
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PAYMENT DEFAULT") and if the Representative for the respective issue of
Designated Senior Debt gives notice of the event of default to the Trustee
stating that such notice is a payment blockage notice (a "PAYMENT BLOCKAGE
NOTICE"), then during the period (the "PAYMENT BLOCKAGE PERIOD") beginning upon
the delivery of such Payment Blockage Notice and ending on the earlier of the
179th day after such delivery and the date on which (x) such Nonpayment Default
with respect to such Designated Senior Debt has been cured or waived or ceases
to exist, (y) all Designated Senior Debt with respect to which any such event of
default has occurred and is continuing is discharged or paid in full in cash or
Cash Equivalents, or (z) the Trustee receives notice thereof from the
Representative for the respective issue of Designated Senior Debt terminating
the Payment Blockage Period (unless the maturity of any Designated Senior Debt
has been accelerated or a Payment Default exists), neither the Issuer nor any
other Person on its behalf shall (x) make any payment of any kind or character
with respect to any Obligations on or with respect to the Securities or (y)
acquire, defease or redeem any of the Securities for cash or assets or
otherwise. Notwithstanding anything herein to the contrary, (x) in no event will
a Payment Blockage Period extend beyond 179 days from the date the applicable
Payment Blockage Notice is received by the Trustee and (y) only one such Payment
Blockage Period may be commenced within any 360 consecutive days. For all
purposes of this Section 10.02(b), no event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Debt shall be, or be made, the basis for the
commencement of a second Payment Blockage Period by the Representative of such
Designated Senior Debt whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action,
or any breach of any financial covenants for a period ending after the date of
commencement of such Payment Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
(c) The foregoing Sections 10.02(a) and (b) shall not apply to
payments and distributions made relating to the Securities from the trust
established pursuant to Article Eight, so long as the conditions specified in
Article Eight (without any waiver or modification of the requirement that the
deposits pursuant thereto do not conflict with the terms of the Credit Agreement
or any other Senior Debt) are satisfied on the date of any deposit pursuant to
said trust. In addition, Holders may also receive and retain Permitted Junior
Securities.
(d) In the event that, notwithstanding the foregoing, any payment or
distribution shall be received by the Trustee or any Holder when such payment or
distribution is prohibited by the foregoing provisions of this Section 10.02,
such payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt (pro rata to such
holders on the basis of the respective amount of Senior Debt held by such
holders) or their respective Representatives, as their respective interests may
appear. The Trustee shall be entitled to rely on information regarding amounts
then due and
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owing on the Senior Debt, if any, received from the holders of Senior Debt (or
their Representatives) or, if such information is not received from such holders
or their Representatives, from the Issuer and only amounts included in the
information provided to the Trustee shall be paid to the holders of Senior Debt.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment of any kind or character with
respect to Obligations on the Securities (and such Holders may receive such
payments only to the extent then permitted to do so by Section 10.02(a) and
(b)).
SECTION 10.03. Securities Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of the Issuer.
(a) Upon any payment or distribution of assets of the Issuer of any
kind or character, whether in cash, assets or securities, to creditors upon any
total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets and liabilities
of the Issuer or in a bankruptcy, reorganization, insolvency, receivership or
other similar proceeding relating to the Issuer or its assets, whether voluntary
or involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
or relating to the Securities (except that Holders may receive and retain
Permitted Junior Securities and payments from the trusts described in Article
Eight), or for the acquisition, defeasance or redemption of any of the
Securities for cash or assets or otherwise. Upon any such dissolution,
winding-up, liquidation, reorganization, receivership or similar proceeding, any
payment or distribution of assets of the Issuer of any kind or character,
whether in cash, assets or securities, to which the Holders or the Trustee under
this Indenture would be entitled, except for the provisions hereof, shall be
paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by them, directly to
the holders of Senior Debt (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Senior Debt.
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(b) To the extent any payment of Senior Debt (whether by or on
behalf of the Issuer, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then the Senior Debt or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
It is further agreed that any diminution (whether pursuant to court
decree or otherwise, including without limitation for any of the reasons
described in the preceding sentence) of the Issuer's obligation to make any
distribution or payment pursuant to any Senior Debt, except to the extent such
diminution occurs by reason of the repayment (which has not been disgorged or
returned) of such Senior Debt in cash or Cash Equivalents, shall have no force
or effect for purposes of the subordination provisions contained in this Article
Ten, with any turnover of payments as otherwise calculated pursuant to this
Article Ten to be made as if no such diminution had occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
assets or securities, shall be received by the Trustee or any Holder when such
payment or distribution is prohibited by this Section 10.03, such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Debt (pro rata to such holders on the
basis of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(d) The consolidation of the Issuer with, or the merger of the
Issuer with or into, another corporation, partnership, trust or limited
liability company or the liquidation or dissolution of the Issuer following the
conveyance or transfer of all or substantially all of its assets, to another
corporation, partnership, trust or limited liability company upon the terms and
conditions provided in Article Five hereof and as long as permitted under the
terms of the Senior Debt shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, assume the Issuer's obligations hereunder in accordance with Article
Five hereof.
SECTION 10.04. Payments May Be Made Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Issuer, except under the conditions described in Sections
10.02 and 10.03, from
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making payments at any time for the purpose of making payments of principal of
and interest on the Securities, or from depositing with the Trustee any moneys
for such payments, or (ii) in the absence of actual knowledge by the Trustee
that a given payment would be prohibited by Section 10.02 or 10.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, and interest on, the Securities to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a Responsible
Officer of the Trustee shall have actually received the written notice provided
for in the first sentence of Section 10.02(b) or in Section 10.07 (provided
that, notwithstanding the foregoing, the Holders receiving any payments made in
contravention of Section 10.02 and/or 10.03 (and the respective such payments)
shall otherwise be subject to the provisions of Section 10.02 and Section
10.03). The Issuer shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of the Issuer, although
any delay or failure to give any such notice shall have no effect on the
subordination provisions contained herein.
SECTION 10.05. Holders To Be Subrogated to Rights of Holders of Senior Debt.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Debt to receive payments or distributions of cash, assets
or securities of the Issuer applicable to the Senior Debt until the Securities
shall be paid in full; and, for the purposes of such subrogation, no such
payments or distributions to the holders of the Senior Debt by or on behalf of
the Issuer, or by or on behalf of the Holders by virtue of this Article Ten,
which otherwise would have been made to the Holders shall, as between the Issuer
and the Holders, be deemed to be a payment by the Issuer to or on account of the
Senior Debt, it being understood that the provisions of this Article Ten are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Debt, on the other hand.
SECTION 10.06. Obligations of the Issuer Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Issuer, its
creditors other than the holders of Senior Debt, and the Holders, the obligation
of the Issuer, which is absolute and unconditional, to pay to the Holders the
principal of and any interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Issuer
other than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Holder of any Security or the Trustee on its behalf from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, in respect of cash, assets or
securities of the Issuer received upon the exercise of any such remedy.
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SECTION 10.07. Notice to Trustee.
The Issuer shall give prompt written notice to the Trustee of any
fact known to the Issuer which would prohibit the making of any payment to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article Ten, although any delay or failure to give any such notice shall have no
effect on the subordination provisions contained herein. Regardless of anything
to the contrary contained in this Article Ten or elsewhere in this Indenture,
the Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing from the Issuer, or from a
holder of Senior Debt or a Representative therefor and, prior to the receipt of
any such written notice, the Trustee shall be entitled to assume (in the absence
of actual knowledge to the contrary) that no such facts exist. The Trustee shall
be entitled to rely on the delivery to it of any notice pursuant to this Section
10.07 to establish that such notice has been given by a holder of Senior Debt
(or a trustee thereof).
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
satisfaction of the Trustee as to the amounts of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten, and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Issuer referred to
in this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Securities shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any
insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation,
reorganization or similar case or proceeding is pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, assignee for the
benefit of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other Indebtedness of the Issuer, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
The Trustee and any agent of the Issuer or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time
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be held by it in its individual or any other capacity to the same extent as any
other holder of Senior Debt and nothing in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice given to holders
or owners of Senior Debt, the distribution may be made and the notice may be
given to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Issuer or
by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Issuer with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders and without impairing or releasing
the subordination provided in this Article Ten or the obligations hereunder of
the Holders to the holders of the Senior Debt, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Debt, or otherwise amend or supplement
in any manner Senior Debt, or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any Person liable in any manner for the payment or
collection of Senior Debt; and (iv) exercise or refrain from exercising any
rights against the Issuer and any other Person.
SECTION 10.11. Securityholders Authorize Trustee To Effectuate Subordination of
Securities.
Each Holder by its acceptance of Securities authorizes and expressly
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior Debt and the
Holders, the subordination provided in this
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Article Ten, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Issuer (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
credits or otherwise) tending towards liquidation of the business and assets of
the Issuer, the filing of a claim for the unpaid balance of its Securities and
accrued interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Debt or their Representative to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 10.12. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of, premium,
if any, or interest on the Securities by reason of any provision of this Article
Ten will not be construed as preventing the occurrence of an Event of Default.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the Trustee
for its own account (other than payments of Obligations owing to Holders in
respect of Securities) pursuant to other sections of this Indenture.
ARTICLE ELEVEN
GUARANTEES
SECTION 11.01. Unconditional Guarantee.
Subject to the provisions of this Article Eleven, each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety, on a senior
subordinated basis to each Holder of a Security 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 Securities or the
obligations of the Issuer
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or any other Guarantors to the Holders or the Trustee hereunder or thereunder:
(a) (x) the due and punctual payment of the principal of, premium, if any, and
interest on the Securities when and as the same shall become due and payable,
whether at maturity, upon redemption or repurchase, by acceleration or
otherwise, (y) the due and punctual payment of interest on the overdue principal
and (to the extent permitted by law) interest, if any, on the Securities
(including, without limitation, interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding relating to the Issuer or any Guarantor, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding) and (z)
the due and punctual payment and performance of all other obligations of the
Issuer and all other obligations of the other Guarantors (including under the
Guarantees), in each case, to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.07 hereof), all in accordance
with the terms hereof and thereof (collectively, the "GUARANTEE OBLIGATIONS");
and (b) in case of any extension of time of payment or renewal of any Securities
or any of such other obligations, the due and punctual payment and performance
of Guarantee Obligations in accordance with the terms of the extension or
renewal, whether at maturity, upon redemption or repurchase, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Issuer to the Holders under this
Indenture or under the Securities, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Securities shall
constitute an event of default under the Guarantees, and shall entitle the
Holders to accelerate the obligations of the Guarantors thereunder in the same
manner and to the same extent as the obligations of the Issuer.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, any release of any other Guarantor, the recovery
of any judgment against the Issuer, any action to enforce the same, whether or
not a Guarantee is affixed to any particular Security, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each of the Guarantors hereby waives the benefit of 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 covenants
that its Guarantee shall not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and the Guarantee. The
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Issuer or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Issuer or such Guarantor, any amount paid by the
Issuer or such Guarantor to the Trustee or such Holder, the Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders of Securities and the
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Trustee, on the other hand, (a) subject to this Article Eleven, the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article Six
for the purposes of the Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Six hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Guarantee.
SECTION 11.02. Subordination of Guarantee.
The obligations of each Guarantor under its Guarantee pursuant to
this Article Eleven shall be junior and subordinated to the prior payment in
full in cash or Cash Equivalents of Guarantor Senior Debt on the same basis as
the Securities are junior and subordinated to Senior Debt of the Issuer. For the
purposes of the foregoing sentence, the Trustee and the Holders shall have the
right to receive and/or retain payments by any of the Guarantors only at such
times as they may receive and/or retain payments in respect of the Securities
pursuant to this Indenture, including Article Ten hereof.
SECTION 11.03. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Securities, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor under its Guarantee and this Article Eleven shall be limited to
the maximum amount as will, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, and after giving effect to any collections from rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article Eleven,
result in the obligations of such Guarantor under its Guarantee not constituting
a fraudulent transfer or conveyance.
SECTION 11.04. Execution and Delivery of Guarantee for Future Guarantors.
To further evidence its Guarantee set forth in Section 11.01, each
Restricted Subsidiary that is required to become a Guarantor hereby agrees to
execute a supplement to this Indenture or a Guarantee, substantially in the form
of Exhibit G hereto, and deliver it to the Trustee. Such Guarantee or supplement
to this Indenture shall be executed on behalf of each Guarantor by either manual
or facsimile signature of one Officer or other person duly
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authorized by all necessary corporate action of each Guarantor who shall have
been duly authorized to so execute by all requisite corporate action. The
validity and enforceability of any Guarantee shall not be affected by the fact
that it is not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 11.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or
a Guarantee no longer holds that office at the time the Trustee authenticates
the Security on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Security shall nevertheless be valid.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of each Guarantor.
SECTION 11.05. Release of a Guarantor.
(a) The Guarantee of a Guarantor will be released:
(1) (a) upon the sale, disposition or other transfer (including
through merger or consolidation) of all of the Capital Stock (or any sale,
disposition or other transfer of Capital Stock following which the
applicable Guarantor is no longer a Restricted Subsidiary), or all or
substantially all the assets, of the applicable Guarantor if such sale,
disposition or other transfer is made in compliance with the applicable
provisions of this Indenture,
(b) if the Issuer designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with Section 4.11
and the definition of "Unrestricted Subsidiary," or
(c) in the case of any Restricted Subsidiary which after the Issue
Date is required to guarantee the Securities pursuant to Section 4.16,
upon the release or discharge of the guarantee by such Restricted
Subsidiary in the circumstances described in Section 4.16; and
(2) in the case of clause (1)(a) above, if such Guarantor is
released from its guarantee, if any, of, and all pledges and security, if
any, granted in connection with, the Credit Agreement and any other
Indebtedness of the Issuer or any Restricted Subsidiary;
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provided, however, in any case that any such termination shall occur only to the
extent that none of the Equity Interests of such Guarantor are pledged for the
benefit of any holder of any Indebtedness of the Issuer or any Indebtedness of
any Restricted Subsidiary of the Issuer.
The Trustee shall execute an appropriate instrument prepared by the
Issuer evidencing the release of a Guarantor from its obligations under its
Guarantee upon receipt of a request by the Issuer or such Guarantor accompanied
by an Officers' Certificate and an Opinion of Counsel certifying as to the
compliance with this Section 11.05; provided, however, that the legal counsel
delivering such Opinion of Counsel may rely as to matters of fact on one or more
Officers' Certificates of the Issuer.
(b) In addition, the Issuer shall not permit any Guarantor to
consolidate with, merge with or into any person (other than the Issuer or
another Guarantor) and shall not permit the conveyance, transfer or lease of
substantially all of the assets of any Guarantor unless:
(A)(1) either: (a) the Guarantor is the surviving Person; or (b) the
Person formed by or surviving any such consolidation or merger (if other
than the Guarantor) or to which such sale, assignment, transfer,
conveyance or other disposition has been made is a corporation,
partnership, trust or limited liability company organized and existing
under the laws of the United States of America, any State of the United
States of America or the District of Columbia (such Person being herein
called the "Successor Guarantor");
(2) the Successor Guarantor (if other than the Guarantor) assumes by
means of a supplemental indenture all the obligations of the Guarantor
under its Guarantee, the Indenture and the Registration Rights Agreement;
and
(3) immediately after such transaction no Default or Event of
Default exists; or
(B) the transaction is made in compliance with Section 4.13 and
Section 5.01.
Except as set forth in Articles Four and Five and this Section
11.05, nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Issuer or
another Guarantor or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Issuer or
another Guarantor.
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SECTION 11.06. Waiver of Subrogation.
Until this Indenture is discharged and all of the Securities are
discharged and paid in full, each Guarantor hereby irrevocably waives and agrees
not to exercise any claim or other rights which it may now or hereafter acquire
against the Issuer that arise from the existence, payment, performance or
enforcement of the Issuer's obligations under the Securities or this Indenture
and such Guarantor's obligations under the Guarantee and this Indenture, in any
such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders against the Issuer, whether or
not such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuer, directly or indirectly, in cash or other assets or by set-off or in any
other manner, payment or security on account of such claim or other rights. If
any amount shall be paid to any Guarantor in violation of the preceding sentence
and any amounts owing to the Trustee or the Holders under the Securities, this
Indenture, or any other document or instrument delivered under or in connection
with such agreements or instruments, shall not have been paid in full, such
amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Trustee or the Holders and
shall forthwith be paid to the Trustee for the benefit of itself or such Holders
to be credited and applied to the obligations in favor of the Trustee or the
Holders, as the case may be, whether matured or unmatured, in accordance with
the terms of this Indenture. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the waiver set forth in this Section 11.06 is knowingly
made in contemplation of such benefits.
SECTION 11.07. Immediate Payment.
Each Guarantor agrees to make immediate payment to the Trustee on
behalf of the Holders of all Guarantee Obligations owing or payable to the
respective Holders upon receipt of a demand for payment therefor by the Trustee
to such Guarantor in writing.
SECTION 11.08. No Setoff.
Each payment to be made by a Guarantor hereunder in respect of the
Guarantee Obligations shall be payable in the currency or currencies in which
such Guarantee Obligations are denominated, and shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
SECTION 11.09. Guarantee Obligations Absolute.
Subject to the provisions of Section 11.02, the obligations of each
Guarantor hereunder are and shall be absolute and unconditional and any monies
or amounts expressed to be owing or payable by each Guarantor hereunder which
may not be recoverable from such
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Guarantor on the basis of a Guarantee shall be recoverable from such Guarantor
as a primary obligor and principal debtor in respect thereof.
SECTION 11.10. Guarantee Obligations Continuing.
Subject to the other provisions of this Indenture, the obligations
of each Guarantor hereunder shall be continuing and shall remain in full force
and effect until all such obligations have been paid and satisfied in full. Each
Guarantor agrees with the Trustee that it will from time to time deliver to the
Trustee suitable acknowledgments of this continued liability hereunder and under
any other instrument or instruments in such form as counsel to the Trustee may
advise and as will prevent any action brought against it in respect of any
default hereunder being barred by any statute of limitations now or hereafter in
force and, in the event of the failure of a Guarantor so to do, it hereby
irrevocably appoints the Trustee the attorney and agent of such Guarantor to
make, execute and deliver such written acknowledgment or acknowledgments or
other instruments as may from time to time become necessary or advisable, in the
judgment of the Trustee on the advice of counsel, to fully maintain and keep in
force the liability of such Guarantor hereunder.
SECTION 11.11. Guarantee Obligations Not Reduced.
The obligations of each Guarantor hereunder shall not be satisfied,
reduced or discharged solely by the payment of such principal, premium, if any,
interest, fees and other monies or amounts as may at any time prior to discharge
of this Indenture pursuant to Article Eight be or become owing or payable under
or by virtue of or otherwise in connection with the Securities or this
Indenture.
SECTION 11.12. Guarantee Obligations Reinstated.
The obligations of each Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of any Guarantor hereunder
(whether such payment shall have been made by or on behalf of the Issuer or by
or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders
upon the insolvency, bankruptcy, liquidation or reorganization of the Issuer or
any Guarantor or otherwise, all as though such payment had not been made. If
demand for, or acceleration of the time for, payment by the Issuer or any other
Guarantor is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Issuer or such Guarantor, all such Indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by
each Guarantor as provided herein.
SECTION 11.13. Guarantee Obligations Not Affected.
The obligations of each Guarantor hereunder shall not be affected,
impaired or diminished in any way by any act, omission, matter or thing
whatsoever, occurring before,
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upon or after any demand for payment hereunder (and whether or not known or
consented to by any Guarantor or any of the Holders) which, but for this
provision, might constitute a whole or partial defense to a claim against any
Guarantor hereunder or might operate to release or otherwise exonerate any
Guarantor from any of its obligations hereunder or otherwise affect such
obligations, whether occasioned by default of any of the Holders or otherwise,
including, without limitation:
(a) any limitation of status or power, disability, incapacity or
other circumstance relating to the Issuer or any other Person, including
any insolvency, bankruptcy, liquidation, reorganization, readjustment,
composition, dissolution, winding-up or other proceeding involving or
affecting the Issuer or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Issuer or any other
Person under this Indenture, the Securities or any other document or
instrument;
(c) any failure of the Issuer or any other Guarantor, whether or not
without fault on its part, to perform or comply with any of the provisions
of this Indenture, the Securities or any Guarantee, or to give notice
thereof to a Guarantor;
(d) the taking or enforcing or exercising or the refusal or neglect
to take or enforce or exercise any right or remedy from or against the
Issuer or any other Person or their respective assets or the release or
discharge of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Issuer or any other Person;
(f) any change in the time, manner or place of payment of, or in any
other term of, any of the Securities, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from,
any of the Securities or this Indenture, including, without limitation,
any increase or decrease in the principal amount of or premium, if any, or
interest on any of the Securities;
(g) any change in the ownership, control, name, objects, businesses,
assets, capital structure or constitution of the Issuer or a Guarantor;
(h) any merger or amalgamation of the Issuer or a Guarantor with any
Person or Persons;
(i) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to
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amend, vary, reduce or otherwise affect, any of the Guarantee Obligations
or the obligations of a Guarantor under its Guarantee; and
(j) any other circumstance, including release of the Guarantor
pursuant to Section 11.05 (other than by complete, irrevocable payment)
that might otherwise constitute a legal or equitable discharge or defense
of the Issuer under this Indenture or the Securities or of a Guarantor in
respect of its Guarantee hereunder.
SECTION 11.14. Waiver.
Without in any way limiting the provisions of Section 11.01, each
Guarantor hereby waives notice of acceptance hereof, notice of any liability of
any Guarantor hereunder, notice or proof of reliance by the Holders upon the
obligations of any Guarantor hereunder, and diligence, presentment, demand for
payment on the Issuer, protest, notice of dishonor or non-payment of any of the
Guarantee Obligations, or other notice or formalities to the Issuer or any
Guarantor of any kind whatsoever.
SECTION 11.15. No Obligation To Take Action Against the Issuer.
Neither the Trustee nor any other Person shall have any obligation
to enforce or exhaust any rights or remedies against the Issuer or any other
Person or any property of the Issuer or any other Person before the Trustee is
entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Guarantees or under this Indenture.
SECTION 11.16. Dealing with the Issuer and Others.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Issuer or any
other Person;
(b) take or abstain from taking security or collateral from the
Issuer or from perfecting security or collateral of the Issuer;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given
by the Issuer or any third party with respect to the obligations or
matters contemplated by this Indenture or the Securities;
(d) accept compromises or arrangements from the Issuer;
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(e) apply all monies at any time received from the Issuer or from
any security upon such part of the Guarantee Obligations as the Holders
may see fit or change any such application in whole or in part from time
to time as the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal
with, the Issuer and all other Persons and any security as the Holders or
the Trustee may see fit.
SECTION 11.17. Default and Enforcement.
If any Guarantor fails to pay in accordance with Section 11.07
hereof, the Trustee may proceed in its name as trustee hereunder in the
enforcement of the Guarantee of any such Guarantor and such Guarantor's
obligations thereunder and hereunder by any remedy provided by law, whether by
legal proceedings or otherwise, and to recover from such Guarantor the
obligations.
SECTION 11.18. Amendment, Etc.
No amendment, modification or waiver of any provision of this
Indenture relating to any Guarantor or consent to any departure by any Guarantor
or any other Person from any such provision will in any event be effective
unless it is signed by such Guarantor and the Trustee.
SECTION 11.19. Acknowledgment.
Each Guarantor, if any, hereby acknowledges communication of the
terms of this Indenture and the Securities and consents to and approves of the
same.
SECTION 11.20. Costs and Expenses.
Each Guarantor shall pay on demand by the Trustee any and all costs,
fees and expenses (including, without limitation, legal fees on a solicitor and
client basis) incurred by the Trustee, its agents, advisors and counsel or any
of the Holders in enforcing any of their rights under any Guarantee.
SECTION 11.21. No Merger or Waiver; Cumulative Remedies.
No Guarantee shall operate by way of merger of any of the
obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture. No failure to exercise and no delay in exercising,
on the part of the Trustee or the Holders, any right, remedy, power or privilege
hereunder or under this Indenture or the Securities, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Indenture or the Securities preclude any other
or
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further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the Guarantee and
under this Indenture, the Securities and any other document or instrument
between a Guarantor and/or the Issuer and the Trustee are cumulative and not
exclusive of any rights, remedies, powers and privilege provided by law.
SECTION 11.22. Guarantee in Addition to Other Guarantee Obligations.
The obligations of each Guarantor under its Guarantee and this
Indenture are in addition to and not in substitution for any other obligations
to the Trustee or to any of the Holders in relation to this Indenture or the
Securities and any guarantees or security at any time held by or for the benefit
of any of them.
SECTION 11.23. Severability.
Any provision of this Article Eleven which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and
purpose of this Indenture and this Article Eleven.
SECTION 11.24. Successors and Assigns.
Each Guarantee shall be binding upon and inure to the benefit of
each Guarantor and the Trustee and the other Holders and their respective
successors and permitted assigns, except that no Guarantor may assign any of its
obligations hereunder or thereunder.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
SECTION 12.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by nationally
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recognized overnight courier service, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
if to the Issuer and/or any Guarantor:
UGS Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇, General Counsel
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
Ropes & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
if to the Trustee:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
Each of the Issuer and the Trustee by written notice to each other
such Person and the Representative under the Credit Agreement may designate
additional or different addresses for notices to such Person. Any notice or
communication to the Issuer and the Trustee, shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered back;
when receipt is acknowledged, if telecopied; five (5) calendar days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee); and next Business Day if by nationally
recognized overnight courier service.
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Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture, the
Securities or the Guarantees. The Issuer, the Trustee, the Registrar and any
other Person shall have the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed or effected by the Issuer, if any, provided for
in this Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, any and all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall 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;
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(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with or satisfied; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 12.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day.
SECTION 12.08. Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES, IF ANY, WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Issuer or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Issuer or any direct or indirect parent corporation or of any Guarantor, as
such, shall have any liability for any obligations of the Issuer or any
Guarantor under the Securities, this Indenture or the Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration for issuance of
the Securities.
SECTION 12.11. Successors.
All agreements of the Issuer in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successor.
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SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 12.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the date first written above.
UGS CORP.,
as Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
UGS Japanese Holdings, Inc., a
Delaware corporation
UGS European Holdings, Inc., a
Delaware corporation
UGS PLM SOLUTIONS INTERNATIONAL
INC., a Delaware corporation
UGS PLM ASIA/PACIFIC INCORPORATED,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
S-1
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: __________________________________________
Name:
Title:
S-2
The undersigned hereby acknowledges and agrees that, upon the
effectiveness of the merger of UGS Corp. with and into UGS PLM Solutions Inc.
with UGS PLM Solutions Inc. continuing as the surviving corporation under the
name "UGS Corp.", it will succeed by operation of law to all of the rights and
obligations of UGS Corp. set forth herein and that all references herein to the
"Issuer" shall thereupon be deemed to be references to the undersigned.
UGS PLM SOLUTIONS INC.,
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
S-3
EXHIBIT A
[FORM OF INITIAL SECURITY]
UGS CORP.
10% Senior Subordinated Notes due 2012
CUSIP No.
ISIN No.
No. $[ ]
UGS CORP., a Delaware corporation (the "Company," which term
includes any successor corporation), for value received promises to pay to CEDE
& CO. or its registered assigns, the principal sum of [ ] dollars ($_______ )
on June 1, 2012.
Interest Payment Dates: June 1 and December 1, commencing December
1, 2004.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
UGS CORP.
By: __________________________________________
Name:
Title:
The undersigned hereby acknowledges and agrees that, upon the
effectiveness of the merger of UGS Corp. with and into UGS PLM Solutions Inc.
with UGS PLM Solutions Inc. continuing as the surviving corporation under the
name "UGS Corp.", it will succeed by operation of law to all of the rights and
obligations of UGS Corp. set forth herein and that all references herein to the
"Issuer" shall thereupon be deemed to be references to the undersigned.
UGS PLM SOLUTIONS INC.,
By: __________________________
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the 10% Senior Subordinated Notes due 2012 described
in the within-mentioned Indenture.
Dated: U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: __________________________________________
Authorized Signatory
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(Reverse of Security)
UGS Corp.
10% Senior Subordinated Notes due 2012
[INSERT THE GLOBAL SECURITY LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF
THE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
SECTION 1. Interest. UGS Corp., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Security at
10% per annum from May 27, 2004 until maturity. The Company will pay interest
semi-annually on June 1 and December 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "INTEREST PAYMENT
DATE"). Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance; provided that if there is no existing Default in the payment
of interest, and if this Security is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be December 1, 2004. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand to the extent lawful at the interest rate applicable to the
Securities; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30 day months.
SECTION 2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on May 15 or November 15 next preceding
the Interest Payment Date, even if such Securities are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Securities
will be issued in denominations of $1,000 and integral multiples of $1,000. The
Company shall pay principal, premium, if any and interest on the Securities in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts ("U.S. LEGAL TENDER").
The principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained
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for such purpose in the Borough of Manhattan, The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose pursuant to Section 2.03 of the Indenture; provided, however, that,
at the option of the Company, each installment of interest may be paid by (i)
check mailed to addresses of the Persons entitled thereto as such addresses
shall appear on the registry maintained by the Registrar or (ii) wire transfer
to an account located in the United States maintained by the payee. Payments in
respect of Securities represented by a Global Security (including principal,
premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by DTC. Payments in respect of
Securities represented by Definitive Securities (including principal, premium,
if any, and interest) held by a Holder will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than three
Business Days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
SECTION 3. Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any Affiliate may act in any such capacity.
SECTION 4. Indenture. The Company issued the Securities under an
Indenture dated as of May 27, 2004 ("INDENTURE") among the Company, the
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Securities are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of such terms. To the extent any
provision of this Security conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
SECTION 5. Optional Redemption. (a) The Securities may be redeemed,
in whole or in part, at any time prior to June 1, 2008, at the option of the
Company upon not less than 30 nor more than 60 days' prior notice mailed by
first-class mail to each Holder's registered address, at a redemption price
equal to 100% of the principal amount of the Securities redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and Additional
Interest, if any, to, the applicable redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date).
For purposes of the preceding paragraph, the following terms will
have the following definitions:
"APPLICABLE PREMIUM" means, with respect to any Security on any
applicable redemption date, the greater of:
(1) 1.0% of the then outstanding principal amount of the Security;
and
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(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of the Security at June 1, 2008 (such redemption
price being set forth in the table appearing under paragraph (b))
plus (ii) all required interest payments due on the Security through
June 1, 2008 (excluding accrued but unpaid interest), computed using
a discount rate equal to the Treasury Rate as of such redemption
date plus 50 basis points; over
(b) the then outstanding principal amount of the Security.
"TREASURY RATE" means, as of the applicable redemption date, the
yield to maturity as of such redemption date of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15 (519) that has become publicly
available at least two Business Days prior to such redemption date (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from such redemption date
to June 1, 2008; provided, however, that if the period from such redemption date
to June 1, 2008, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year will be used.
(b) On or after June 1, 2008, the Securities will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Additional Interest thereon, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on June 1
of the years indicated below:
YEAR PERCENTAGE
---- ----------
2008.................................. 105.000%
2009.................................. 102.500%
2010 and thereafter................... 100.000%
SECTION 6. Optional Redemption upon Equity Offering. From time to
time prior to June 1, 2007, the Company may on any one or more occasions redeem
in the aggregate up to 35% of the aggregate principal amount of Securities
issued under the Indenture (calculated after giving effect to the issuance of
Additional Securities), with the net cash proceeds of one or more Equity
Offerings, at a redemption price equal to 110% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest thereon, if any, to the
redemption date; provided that (i) at least 65% of the aggregate principal
amount of Securities issued under the Indenture (calculated after giving effect
to any issuance of Additional Securities) remains outstanding immediately after
the occurrence of such redemption (excluding Securities held by the Company and
its Subsidiaries) and (ii) such
A-6
redemption shall occur within 90 days of the date of the closing of such Equity
Offering (disregarding the date of the closing of any over-allotment option with
respect thereto).
SECTION 7. Mandatory Redemption. For the avoidance of doubt, an
offer to purchase pursuant to Section 8 hereof shall not be deemed a redemption.
The Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Securities.
SECTION 8. Offers To Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Securities in accordance with the procedures set forth in the
Indenture.
SECTION 9. Notice of Redemption. Notice of redemption will be mailed
by first class mail at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at its registered
address. Securities in denominations larger than $1,000 may be redeemed in part.
If any Security is to be redeemed in part only, the notice of redemption that
relates to such Security shall state the portion of the principal amount thereof
to be redeemed. A new Security in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the redemption date interest
ceases to accrue on Securities or portions thereof called for redemption.
SECTION 10. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company or the Registrar
is not required to transfer or exchange any Security selected for redemption.
Also, the Company or the Registrar is not required to transfer or exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 11. Persons Deemed Owners. The registered Holder of a
Security may be treated as its owner for all purposes.
SECTION 12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture and the Securities may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate principal
amount of the Securities then outstanding, and any existing Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding
(except a payment default or in respect of a covenant or provision that cannot
be modified without the consent of each affected Holder). Without notice to or
consent of any Holder, the parties thereto may amend or supplement the Indenture
and the
A-7
Securities to, among other things, cure any ambiguity, defect or inconsistency
in the Indenture, provide for uncertificated Securities in addition to
certificated Securities, comply with any requirements of the Commission in
connection with the qualification of the Indenture under the TIA, or make any
change that does not adversely affect the legal rights of any Holder of a
Security.
SECTION 13. Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Securities generally may declare all the
Securities to be due and payable immediately. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency as set forth in the Indenture, with respect to the Company, all
outstanding Securities will become due and payable without further action or
notice. Holders of the Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing Default (except a
Default relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by notice to the Trustee may
on behalf of the Holders of all of the Securities waive any Default and its
consequences under the Indenture except a continuing Default in the payment of
interest on, or the principal of, the Securities or in respect of certain
covenants set forth in the Indenture.
SECTION 14. Restrictive Covenants. The Indenture contains certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries of the Company, to consolidate, merge or
sell all or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important qualifications
and exceptions. The Company must annually report to the Trustee on compliance
with such limitations.
SECTION 15. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of any of the Company, any direct or
indirect parent corporation or any Guarantor, as such, shall have any liability
for any obligations of the Company or the Guarantors under the Securities, the
Indenture, the Guarantors' Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities.
SECTION 16. Trustee Dealings with the Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, its Subsidiaries
or their respective Affiliates as if it were not the Trustee.
A-8
SECTION 17. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
SECTION 18. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entirety), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
SECTION 19. Additional Rights of Holders of Restricted Global
Securities and Restricted Definitive Securities. Pursuant to, but subject to the
exceptions in, the Registration Rights Agreement, the Company and the
Guarantors, if any, will be obligated to consummate an exchange offer pursuant
to which the Holder of this Security shall have the right to exchange this
Initial Security for a 10% Senior Subordinated Note due 2012 of the Company
which shall have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to this Initial
Security (except that such note shall not be entitled to Additional Interest).
The Holders shall be entitled to receive certain Additional Interest in the
event such exchange offer is not consummated or the Securities are not offered
for resale and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.(1)
SECTION 20. Guarantees. The Securities will be entitled to the
benefits of certain Guarantees made for the benefit of the Holders. The
Guarantees are subordinated to the payment of Guarantor Senior Debt. Reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Guarantors, the
Trustee and the Holders.
SECTION 21. Subordination. The Securities are subordinated to Senior
Debt, as defined in the Indenture. To the extent provided in the Indenture,
Senior Debt must be paid before the Securities may be paid. The Company agrees,
and each Holder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give them effect and
appoints the Trustee as attorney-in-fact for such purpose.
SECTION 22. CUSIP Numbers and ISINs. The Company has caused CUSIP
numbers and ISINs to be printed on the Securities and has directed the Trustee
to use CUSIP numbers and ISINs in notices of redemption as a convenience to the
Holders. No representation is made as to the accuracy of such numbers either as
printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon
--------------------
(1) This Section not to appear on Exchange Securities.
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SECTION 23. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture.
A-10
ASSIGNMENT FORM
I or we assign and transfer this Security to:
_______________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Security on the books of the Company. The
Agent may substitute another to act for him.
Date: ___________________ Your Signature: __________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee: ______________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.09 or Section 4.13 of the Indenture, check the appropriate
box:
Section 4.09 [ ] Section 4.13 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.09 or Section 4.13 of the Indenture, state the
amount: $___________
Dated: _________________ Signed: _________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee: _______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
-------- --------------------- --------------------- -------------------- --------------------
EXHIBIT B
[FORM OF LEGEND FOR 144A SECURITIES AND
OTHER SECURITIES THAT ARE RESTRICTED SECURITIES]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S
RIGHT PRIOR
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TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER HEREOF WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH
HOLDER TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE
BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OF PLANS, INDIVIDUAL RETIREMENT
ACCOUNTS OR OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR PROVISIONS UNDER ANY
FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO
SUCH PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAWS"), OR OF AN ENTITY WHOSE
UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE "PLAN ASSETS" OF SUCH PLANS,
ACCOUNTS OR ARRANGEMENTS, OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL
NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR
LAWS.
B-2
[FORM OF ASSIGNMENT FOR 144A SECURITIES
AND OTHER SECURITIES THAT ARE RESTRICTED SECURITIES]
I or we assign and transfer this Security to:
_______________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Security on the books of the Issuers. The
Agent may substitute another to act for him.
[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule 144A
thereunder.
or
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.01 and 2.06 of the Indenture
shall have been satisfied.
Date: _____________________ Your Signature: ___________________________
(Sign exactly as your name
appears on the face of this
Security)
Signature Guarantee: ________________________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-3
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The Transfer is being effected pursuant to and in accordance with
Rule 144A under the Securities Act, and, accordingly, the Transferor hereby
further certifies that the beneficial interest or certificated Security is being
Transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or certificated Security for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable securities laws of any state of the United States. Upon consummation
of the proposed Transfer in accordance with the terms of the Indenture, the
Transferred beneficial interest or certificated Security will be subject to the
restrictions on transfer enumerated on the Rule 144A Securities and/or the
certificated Security and in the Indenture and the Securities Act.
Dated: ________________________ ______________________________________
NOTICE: To be executed by an executive
officer
B-4
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S SECURITY]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
C-1
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER HEREOF WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH
HOLDER TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE
BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OF PLANS, INDIVIDUAL RETIREMENT
ACCOUNTS OR OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR PROVISIONS UNDER ANY
FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO
SUCH PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAWS"), OR OF AN ENTITY WHOSE
UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE "PLAN ASSETS" OF SUCH PLANS,
ACCOUNTS OR ARRANGEMENTS, OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL
NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR
LAWS.
C-2
[FORM OF ASSIGNMENT FOR REGULATION S SECURITY]
I or we assign and transfer this Security to:
_______________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Security on the books of the Issuers. The
Agent may substitute another to act for him.
[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by Regulation S
thereunder.
or
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.01 and 2.06 of the Indenture
shall have been satisfied.
Date: _______________________ Your Signature: __________________________
(Sign exactly as your name
appears on the face of
this Security)
Signature Guarantee: ______________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-3
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(a)(2) or Rule
904(a)(2) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed Transfer is being made prior to the
expiration of the restricted period under Regulation S, the Transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an initial purchaser). Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the Transferred beneficial interest
or certificated Security will be subject to the restrictions on Transfer
enumerated on the Regulation S Securities and/or the certificated Security and
in the Indenture and the Securities Act.
Dated: ________________________ ______________________________________
NOTICE: To be executed by an executive
officer
C-4
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL SECURITY]
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
D-1
EXHIBIT E
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UGS Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Purchase of US$[ ] principal amount of 10%
Senior Subordinated Notes due 2012 (the
"Securities") of UGS Corp. (the "Company")(1)
Ladies and Gentlemen:
In connection with our purchase of the Securities we confirm that:
1. We understand that the Securities are not being and will not be
registered under the Securities Act of 1933, as amended (the "Act"), and are
being sold to us in a transaction that is exempt from the registration
requirements of the Act.
2. We acknowledge that (a) neither the Company, nor the Initial
Purchasers (as defined in the Offering Memorandum dated May 19, 2004, relating
to the Securities (the "Final Memorandum")) nor any person acting on behalf of
the Company or the Initial Purchasers has made any representation to us with
respect to the Company or the offer or sale of any Securities; and (b) any
information we desire concerning the Company and the Securities or any other
matter relevant to our decision to purchase the Securities (including a copy of
the Final Memorandum) is or has been made available to us.
3. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Securities, and we are (or any account for which we are purchasing under
paragraph 4 below is) an institutional
-------------------
(1) Each U.S. purchaser, or account for which each U.S. purchaser is acting,
should purchase at least US$250,000 of Securities.
E-1
"accredited investor" (within the meaning of Rule 501(a) (1), (2), (3) or (7) of
Regulation D under the Act) (an "IAI") able to bear the economic risk of
investment in the Securities.
4. We are acquiring the Securities for our own account (or for
accounts as to which we exercise sole investment discretion and have authority
to make, and do make, the statements contained in this letter) and not with a
view to any distribution of the Securities, subject, nevertheless, to the
understanding that the disposition of our property will at all times be and
remain within our control.
5. We understand that (a) the Securities will be in registered form
only and that any certificates delivered to us in respect of the Securities will
bear a legend substantially to the following effect:
"These Securities have not been registered under the
Securities Act of 1933. Further offers or sales of these Securities
are subject to certain restrictions, as set forth in the Offering
Memorandum dated May 19, 2004 relating to these Securities."
and (b) the Company has agreed to reissue such certificates without
the foregoing legend only in the event of a disposition of the Securities in
accordance with the provisions of paragraph 6 (provided, in the case of a
disposition of the Securities in accordance with paragraph 6(f) below, that the
legal opinion referred to in such paragraph so permits), or at our request at
such time as we would be permitted to dispose of them in accordance with
paragraph 6(a) below.
6. We agree that in the event that at some future time we wish to
dispose of any of the Securities, we will not do so unless such disposition is
made in accordance with any applicable securities laws of any state of the
United States and:
(a) the Securities are sold in compliance with Rule 144(k) under the
Act; or
(b) the Securities are sold in compliance with Rule 144A under the
Act; or
(c) the Securities are sold in compliance with Rule 904 of
Regulation S under the Act; or
(d) the Securities are sold pursuant to an effective registration
statement under the Act; or
(e) the Securities are sold to the Company or an affiliate (as
defined in Rule 501(b) of Regulation D) of the Company; or
E-2
(f) the Securities are sold to an IAI that is purchasing for its own
account or for the account of such an IAI in each case in a minimum principal
amount of Securities of $250,000 for investment purposes and not with a view to
or for offer or sale in connection with any distribution in violation of the
Securities Act; or
The Securities are disposed of in any other transaction that does
not require registration under the Act, and we theretofore have furnished to the
Company or its designee an opinion of counsel experienced in securities law
matters to such effect or such other documentation as the Company or its
designee may reasonably request.
Very truly yours,
By: _______________________
(Authorized Officer)
Title:
E-3
EXHIBIT F
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: UGS Corp. ("the Issuer") 10% Senior
Subordinated Notes due 2012 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $[________] aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Securities was not made to a person in the
United States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or
(ii) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(c) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of
Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are applicable
thereto, we confirm that such
F-1
sale has been made in accordance with the applicable provisions of Rule
903(b)(3) or Rule 904(b)(3), as the case may be.
The Trustee and the Issuer are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ___________________________
Authorized Signature
F-2
EXHIBIT G
FORM OF INDENTURE SUPPLEMENT TO ADD SECURITIES GUARANTORS
This Supplemental Indenture, dated as of [_______ __], 20__ (this
"Supplemental Indenture" or "Guarantee"), among [name of future Securities
Guarantor] (the "Guarantor"), UGS Corp. (together with its successors and
assigns, the "Company"), each other then existing Guarantor under the Indenture
referred to below (the "Securities Guarantors"), and U.S. Bank National
Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Securities Guarantors and the Trustee have
heretofore executed and delivered an Indenture, dated as of May 27, 2004 (as
amended, supplemented, waived or otherwise modified, the "Indenture"), providing
for the issuance of 10% Senior Subordinated Notes due 2012 of the Company (the
"Securities");
WHEREAS, Section 4.16 of the Indenture provides that the Company is
required to cause each Restricted Subsidiary that Guarantees any Indebtedness of
the Company or any of its Guarantors to execute and deliver to the Trustee a
supplemental indenture pursuant to which such Restricted Subsidiary will
unconditionally Guarantee, on a joint and several basis with the other
Securities Guarantors, the full and prompt payment of the principal of, premium,
if any, and interest on the Securities on a senior subordinated basis; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and
the Company are authorized to execute and deliver this Supplemental Indenture to
amend or supplement the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Company, the other Securities Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Guarantee
shall refer to the term "Holders" as defined in the Indenture and the Trustee
acting on behalf or for the benefit of such Holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental
G-1
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. The Guarantor hereby becomes a
party to the Indenture as a Securities Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of a
Securities Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Securities Guarantor and
to perform all of the obligations and agreements of a Securities Guarantor under
the Indenture.
SECTION 2.2 Guarantee. The Guarantor agrees, on a joint and several
basis with all the existing Securities Guarantors, to fully, unconditionally and
irrevocably Guarantee to each Holder of the Securities and the Trustee the
Obligations on a senior subordinated basis as provided in Articles Ten and
Eleven of the Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to the
Guarantor shall be given as provided in the Indenture to the Guarantor, at its
address set forth below, with a copy to the Company as provided in the Indenture
for notices to the Company.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 3.4 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every
G-2
Holder of Securities heretofore or hereafter authenticated and delivered shall
be bound hereby. The Trustee makes no representation or warranty as to the
validity or sufficiency of this Supplemental Indenture.
SECTION 3.6 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the sections
in this Guarantee are for convenience of reference only and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
G-3
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
[SECURITIES GUARANTOR],
as a Guarantor
By: _____________________________________________
Name:
Title:
[Address]
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _____________________________________________
Name:
Title:
UGS CORP.
By: _____________________________________________
Name:
Title:
By each of the Guarantors party to the Indenture:
By: _____________________________________________
Name:
Title:
G-4