EXHIBIT 4.2
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▇▇▇▇▇▇▇ COMPANY
10% SENIOR DISCOUNT NOTES DUE 2014
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INDENTURE
Dated as of December 15, 2004
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▇▇▇▇▇ Fargo Bank, National Association,
as Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)........................................... 7.10
(a)(2)........................................... 7.10
(a)(3)........................................... N.A.
(a)(4)........................................... N.A.
(a)(5)........................................... 7.10
(b).............................................. 7.10
(c).............................................. N.A.
311(a).............................................. 7.11
(b).............................................. 7.11
(c).............................................. N.A.
312(a).............................................. 2.05
(b).............................................. 13.03
(c).............................................. 13.03
313(a).............................................. 7.06
(b)(1)........................................... N.A.
(b)(2)........................................... 7.06; 7.07
(c).............................................. 7.06; 13.02
(d).............................................. 7.06
314(a).............................................. 4.03; 13.02; 13.05
(b)(1)........................................... N.A.
(c)(1)........................................... 13.04
(c)(2)........................................... 13.04
(c)(3)........................................... N.A.
(d).............................................. N.A.
(e).............................................. 13.05
(f).............................................. N.A.
315(a).............................................. 7.01
(b).............................................. 7.05, 13.02
(c).............................................. 7.01
(d).............................................. 7.01
(e).............................................. 6.11
316(a) (last sentence).............................. 2.09
(a)(1)(A)........................................ 6.05
(a)(1)(B)........................................ 6.04
(a)(2)........................................... N.A.
(b).............................................. 6.07
(c).............................................. 2.12
317(a)(1)........................................... 6.08
(a)(2)........................................... 6.09
(b).............................................. 2.04
318(a).............................................. 13.01
(b).............................................. N.A.
(c).............................................. 13.01
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.................................................. 1
Section 1.02 Other Definitions............................................ 25
Section 1.03 Incorporation by Reference of Trust Indenture Act............ 26
Section 1.04 Rules of Construction........................................ 26
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.............................................. 27
Section 2.02 Execution and Authentication................................. 28
Section 2.03 Registrar and Paying Agent................................... 28
Section 2.04 Paying Agent to Hold Money in Trust.......................... 28
Section 2.05 Holder Lists................................................. 28
Section 2.06 Transfer and Exchange........................................ 29
Section 2.07 Replacement Notes............................................ 41
Section 2.08 Outstanding Notes............................................ 41
Section 2.09 Treasury Notes............................................... 42
Section 2.10 Temporary Notes.............................................. 42
Section 2.11 Cancellation................................................. 42
Section 2.12 Defaulted Interest........................................... 42
Section 2.13 Issuance of Additional Notes................................. 42
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee........................................... 43
Section 3.02 Selection of Notes to Be Redeemed or Purchased............... 43
Section 3.03 Notice of Redemption......................................... 44
Section 3.04 Effect of Notice of Redemption............................... 44
Section 3.05 Deposit of Redemption or Purchase Price...................... 45
Section 3.06 Notes Redeemed or Purchased in Part.......................... 45
Section 3.07 Optional Redemption.......................................... 45
Section 3.08 Mandatory Redemption......................................... 46
Section 3.09 Offer to Purchase by Application of Excess Proceeds.......... 46
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes............................................. 48
Section 4.02 Maintenance of Office or Agency.............................. 49
Section 4.03 Reports...................................................... 49
Section 4.04 Compliance Certificate....................................... 50
Section 4.05 Taxes........................................................ 51
Section 4.06 Stay, Extension and Usury Laws............................... 51
Section 4.07 Restricted Payments.......................................... 51
Section 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries................................................. 55
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock... 57
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Section 4.10 Asset Sales.................................................. 60
Section 4.11 Transactions with Affiliates................................. 62
Section 4.12 Liens........................................................ 63
Section 4.13 Business Activities.......................................... 64
Section 4.14 Corporate Existence.......................................... 64
Section 4.15 Offer to Repurchase Upon Change of Control................... 64
Section 4.16 Designation of Restricted and Unrestricted Subsidiaries...... 66
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets..................... 66
Section 5.02 Successor Corporation Substituted............................ 67
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default............................................ 68
Section 6.02 Acceleration................................................. 69
Section 6.03 Other Remedies............................................... 70
Section 6.04 Waiver of Past Defaults...................................... 70
Section 6.05 Control by Majority.......................................... 70
Section 6.06 Limitation on Suits.......................................... 71
Section 6.07 Rights of Holders to Receive Payment......................... 71
Section 6.08 Collection Suit by Trustee................................... 71
Section 6.09 Trustee May File Proofs of Claim............................. 71
Section 6.10 Priorities................................................... 72
Section 6.11 Undertaking for Costs........................................ 72
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee............................................ 72
Section 7.02 Rights of Trustee............................................ 73
Section 7.03 Individual Rights of Trustee................................. 74
Section 7.04 Trustee's Disclaimer......................................... 74
Section 7.05 Notice of Defaults........................................... 74
Section 7.06 Reports by Trustee to Holders of the Notes................... 74
Section 7.07 Compensation and Indemnity................................... 75
Section 7.08 Replacement of Trustee....................................... 75
Section 7.09 Successor Trustee by ▇▇▇▇▇▇, etc............................. 76
Section 7.10 Eligibility; Disqualification................................ 76
Section 7.11 Preferential Collection of Claims Against Company............ 77
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..... 77
Section 8.02 Legal Defeasance and Discharge............................... 77
Section 8.03 Covenant Defeasance.......................................... 77
Section 8.04 Conditions to Legal or Covenant Defeasance................... 78
Section 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions........................ 79
Section 8.06 Repayment to Company......................................... 80
Section 8.07 Reinstatement................................................ 80
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders................................... 80
Section 9.02 With Consent of Holders...................................... 81
Section 9.03 Compliance with Trust Indenture Act.......................... 83
Section 9.04 Revocation and Effect of Consents............................ 83
Section 9.05 Notation on or Exchange of Notes............................. 83
Section 9.06 Trustee to Sign Amendments, etc.............................. 83
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01 Satisfaction and Discharge................................... 83
Section 10.02 Application of Trust Money................................... 84
Section 10.03 Reinstatement................................................ 85
Section 10.04 Repayment to Company......................................... 85
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls................................. 85
Section 11.02 Notices...................................................... 85
Section 11.03 Communication by Holders with Other Holders.................. 86
Section 11.04 Certificate and Opinion as to Conditions Precedent........... 86
Section 11.05 Statements Required in Certificate or Opinion................ 87
Section 11.06 Rules by Trustee and Agents.................................. 87
Section 11.07 No Personal Liability of Directors, Officers, Employees
and Stockholders............................................. 87
Section 11.08 Governing Law................................................ 87
Section 11.09 No Adverse Interpretation of Other Agreements................ 87
Section 11.10 Successors................................................... 88
Section 11.11 Severability................................................. 88
Section 11.12 Counterpart Originals........................................ 88
Section 11.13 Table of Contents, Headings, etc............................. 88
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
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INDENTURE dated as of December 15, 2004 between ▇▇▇▇▇▇▇ Company, a
Delaware corporation (the "Company") and ▇▇▇▇▇ Fargo Bank, National Association,
as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders (as defined) of the 10%
Senior Discount Notes due 2014 (the "Notes") issued under this Indenture:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount at maturity of the Notes sold in reliance on Rule
144A.
"Accreted Value" means, as of any date of determination (the "Specified
Date"), the amount provided below for each $1,000 principal amount at maturity
of the Notes:
(1) if the Specified Date occurs on one or more of the following
dates (each, a "Semi-Annual Accrual Date"), the Accreted Value will equal
the amount set forth below opposite such Semi-Annual Accrual Date:
SEMI-ANNUAL ACCRUAL DATE ACCRETED VALUE
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June 15, 2005........................................... $ 644.61
December 15, 2005....................................... $ 676.84
June 15, 2006........................................... $ 710.68
December 15, 2006....................................... $ 746.21
June 15, 2007........................................... $ 783.52
December 15, 2007....................................... $ 822.70
June 15, 2008........................................... $ 863.83
December 15, 2008....................................... $ 907.02
June 15, 2009........................................... $ 952.38
December 15, 2009....................................... $ 1,000.00
(2) if the Specified Date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of:
(A) the original issue price, and
(B) an amount equal to the product of (x) the Accreted Value
for the first Semi-Annual Accrual Date less the original issue price
and (y) a fraction, the numerator of which is the number of days
from the Issue Date to the Specified Date, using a 360-day year of
twelve 30-day months and the denominator of which is the number of
days elapsed from the Issue Date to the first Semi-Annual Accrual
Date, using a 360-day year of twelve 30-day months;
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(3) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of:
(A) the Accreted Value for the Semi-Annual Accrual Date
immediately preceding such Specified Date, and
(B) an amount equal to the product of (x) the Accreted Value
for the immediately following Semi-Annual Accrual Date less the
Accreted Value for the Semi-Annual Accrual Date immediately
preceding such Specified Date and (y) a fraction, the numerator of
which is the number of days from the immediately preceding
Semi-Annual Accrual Date to the Specified Date, using a 360-day year
of twelve 30-day months, and the denominator of which is 180; or
(4) if the Specified Date occurs on or after December 15, 2009, the
Accreted Value will equal $1,000.
"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 Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with,
or in contemplation of, such other Person merging with or into, or
becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Additional Notes" means additional Notes (other than the Initial Notes,
the related Exchange Notes to be issued pursuant to the Registration Rights
Agreement and Notes issued under Sections 2.06, 2.07, 2.10 and 3.06 hereof)
issued under this Indenture in accordance with Sections 2.02, 2.13 and 4.09
hereof, as part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have correlative
meanings. No Person (other than the Company or any Subsidiary of the Company) in
whom a Receivables Subsidiary makes an Investment in connection with a Qualified
Receivables Transaction will be deemed to be an Affiliate of the Company or any
of its Subsidiaries solely by reason of such Investment.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Procedures" means, with respect to any transfer, redemption or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer, redemption or exchange.
"Asset Acquisition" means (a) an Investment by the Company or any of its
Restricted Subsidiaries in any other Person if, as a result of such Investment,
such Person shall become a Restricted Subsidiary of the Company, or shall be
merged with or into the Company or any Restricted Subsidiary of the Company,
2
or (b) the acquisition by the Company or any Restricted Subsidiary of the
Company of all or substantially all of the assets of any other Person or any
division or line of business of any other Person.
"Asset Sale" means:
(1) the sale, lease (other than an operating lease entered into in
the ordinary course of business), conveyance or other disposition of any
assets or rights of the Company or any Restricted Subsidiary; provided
that the sale, conveyance or other disposition of all or substantially all
of the assets of the Company and its Restricted Subsidiaries taken as a
whole shall be governed by Section 4.15 and/or Section 5.01 hereof and not
by the provisions of Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries (in each case other than directors' qualifying Equity
Interests or Equity Interests required by applicable law to be held by a
Person other than the Company or a Restricted Subsidiary).
Notwithstanding the preceding, the following items will not be deemed to be
Asset Sales:
(1) any single transaction or series of related transactions that
involves assets or rights having a Fair Market Value of less than $5.0
million;
(2) a sale, conveyance or other disposition or transfer of assets
between or among the Company and its Restricted Subsidiaries,
(3) an issuance of Equity Interests by, or a sale of Equity
Interests in, a Restricted Subsidiary of the Company to the Company or to
another Restricted Subsidiary of the Company;
(4) the sale, lease, sub-lease, license, sub-license, consignment,
conveyance or other disposition of equipment, inventory or other assets in
the ordinary course of business, including leases with a duration of no
greater than 24 months with respect to facilities that are temporarily not
in use or pending their disposition, or accounts receivable in connection
with the compromise, settlement or collection thereof;
(5) the sale, lease, conveyance or other disposition of obsolete,
damaged or worn out equipment or property in the ordinary course of
business or any other property that is uneconomic or no longer useful to
the conduct of the business of the Company or its Restricted Subsidiaries;
(6) the sale, conveyance or other disposition of cash or Cash
Equivalents;
(7) sales, conveyances or other dispositions of accounts receivable
and related assets or participations therein in connection with any
Qualified Receivables Transaction;
(8) a Restricted Payment or Permitted Investment that is permitted
by Section 4.07 hereof;
(9) the licensing of intellectual property to third Persons on
customary terms as determined in good faith by the Board of Directors of
the Company; or
(10) any sale of Equity Interests in or Indebtedness or other
securities of an Unrestricted Subsidiary.
3
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" 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 or a committee thereof authorized to exercise the power of the
board of directors of such corporation;
(2) with respect to a partnership or limited liability company, the
managing general partner or partners or the managing member or members or
any controlling committee of partners or members, as applicable; and
(3) with respect to any other Person, any similar governing body.
"Board Resolution" means a copy of a resolution certified by the secretary
or assistant secretary (or an individual performing similar duties) of the
Company to have been duly adopted by the Board of Directors of the Company and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Calculation Date" has the meaning ascribed to such term in the definition
of Fixed Charge Coverage Ratio.
"Capital Lease Obligation" means, at the time any determination is to be
made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP, and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
4
(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.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the
United States government (provided that the full faith and credit of the
United States is pledged in support of those securities) having maturities
of not more than 360 days from the date of acquisition;
(3) marketable general obligations issued by any state of the United
States or any political subdivision of any such state or any public
instrumentality thereof maturing within one year of the date of
acquisition and at the time of acquisition rated "A" or better from either
of ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Services;
(4) certificates of deposit, time deposits and eurodollar time
deposits or bankers' acceptances with maturities of one year or less from
the date of acquisition, and overnight bank deposits, in each case, with
any domestic commercial bank having capital and surplus in excess of
$500.0 million;
(5) repurchase obligations for underlying securities of the types
described in clauses (2), (3) and (4) above entered into with any
financial institution meeting the qualifications specified in clause (4)
above;
(6) commercial paper rated at the time of acquisition thereof at
least A-1 or the equivalent by ▇▇▇▇▇'▇ Investors Service, Inc. or at least
P-1 or the equivalent by Standard & Poor's Ratings Services (or carrying
an equivalent rating by a nationally recognized rating agency if both the
two named agencies cease publishing ratings of investments) and in each
case maturing within one year after the date of acquisition; and
(7) interests in investment companies or money market funds at least
95% of the assets of which constitute cash and Cash Equivalents of the
kinds described in clauses (1) through (6) of this definition.
"Change of Control" means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a
series of related transactions, of all or substantially all of the assets
of the Company and its Subsidiaries, taken as a whole, to any Person other
than a Permitted Holder;
(2) the adoption of a plan by the Company relating to the
liquidation or dissolution of the Company, as applicable;
(3) the Company 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" (as such
terms are used in Section 13(d) and Section 14(d) 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, or any successor provision), other
than the Permitted Holders, in a single
5
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 Exchange Act, or any
successor provision), of 50% or more of the total voting power of the
Voting Stock of the Company or any direct or indirect parent of the
Company;
(4) (A) prior to the first public offering of common stock of either
the Company or any direct or indirect parent of the Company, the first day
on which the Board of Directors of the Company shall cease to consist of a
majority of directors who (i) were members of the Board of Directors of
the Company on the date hereof or (ii) were either (x) nominated for
election by the Board of Directors of the Company, a majority of whom were
directors on the date hereof or whose election or nomination for election
was previously approved by a majority of such directors, 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 the Company, if such
public offering is of the Company's common stock, the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors or if such public offering is of the parent's common
stock, the first day on which a majority of the members of the Board of
Directors of the parent are not directors who (i) were members of the
Board of Directors of the parent on the date hereof or (ii) were either
(x) nominated for election by the Board of Directors of the parent, a
majority of whom were directors on the date hereof or whose election or
nomination for election was previously approved by a majority of such
directors, or (y) designated or appointed by a Permitted Holder; or
(5) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other Person is converted
into or exchanged for cash, securities or other property, other than any
such transaction where (A) the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance) and (B) immediately after such
transaction, no "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act, or any successor provision), other
than the Permitted Holders, becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the voting power of the Voting Stock of
the surviving or transferee Person.
"Clearstream" means Clearstream Banking, S.A. and any successor thereto.
"Commodity Price Protection Agreement" means, with respect to any Person,
any agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Company" means ▇▇▇▇▇▇▇ Company, and any and all successors thereto.
"Consolidated Cash Flow" means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus:
(1) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net
Income; plus
(2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including amortization of debt
6
issuance costs and original issue discount, noncash interest payments, the
interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
imputed interest with respect to commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income; plus
(3) depreciation, amortization (excluding amortization of prepaid
cash expenses that were paid in a prior period) and other noncash expenses
(excluding any such noncash expense to the extent that it represents an
accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of
such Person and its Restricted Subsidiaries for such period, to the extent
that such depreciation, amortization and other noncash expenses were
deducted in computing such Consolidated Net Income; plus
(4) any management fees paid by the Company or any of its Restricted
Subsidiaries to the Equity Sponsor or any of its Affiliates in such
period, to the extent that any such management fees were deducted in
computing such Consolidated Net Income; provided that the maximum
aggregate amount of such management fees in any 12-month period shall not
exceed the greater of $1.5 million and an amount equal to 1.0% of the
consolidated earnings before interest, taxes, depreciation and
amortization of the Company and its Subsidiaries for such period as
computed in the Management Agreement; and provided further that the right
to receive any such management fees from the Company or any of its
Restricted Subsidiaries shall be subordinated to the Notes in the event of
a bankruptcy, insolvency or reorganization with respect to the Company;
plus
(5) any reasonable expenses or charges related to any Equity
Offering, Permitted Investment, acquisition, recapitalization or
Indebtedness permitted to be incurred under this Indenture or related to
the Company's acquisition of ▇▇▇▇▇▇▇ Bedding on December 19, 2003 and, in
each case, deducted in computing such Consolidated Net Income; plus
(6) the amount of any one-time restructuring charges (which, for the
avoidance of doubt, shall include retention, severance, systems
establishment cost or excess pension charges) deducted in computing such
Consolidated Net Income relating to the Company's acquisition of ▇▇▇▇▇▇▇
Bedding on December 19, 2003; plus
(7) without duplication, any other noncash charges (including any
impairment charges, write-offs of assets and the impact of purchase
accounting, including, but not limited to, the amortization of inventory
step-up) reducing such Consolidated Net Income (excluding any such charge
that represents an accrual or reserve for a cash expenditure for a future
period); minus
(8) noncash items increasing such Consolidated Net Income for such
period, excluding any items which represent the reversal of any accrual
of, or cash reserve for, anticipated cash charges in any prior period,
in each case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that:
(1) the Net Income of any Person that is not a Restricted Subsidiary
or that is accounted for by the equity method of accounting will be
included only to the extent of the amount of
7
dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary of the specified Person (and if such Net Income is a
loss will be included only to the extent that such loss has been funded
with cash by the specified Person or a Restricted Subsidiary of the
specified Person);
(2) the Net Income of any Restricted Subsidiary will be excluded to
the extent that the declaration or payment of dividends or similar
distributions or the making of loans or intercompany advances by that
Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has
not been obtained) or, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, unless such restriction with respect to
the payment of dividends or similar distribution (x) has been legally and
irrevocably waived or (y) is permitted pursuant to Section 4.08 hereof;
(3) except with respect to any gain (but not loss) realized upon the
sale of assets held for sale on the date of this Indenture, any net gain
or loss realized upon the sale or other disposition of any asset of such
Person or its Restricted Subsidiaries (including pursuant to a
sale/leaseback transaction) that is not sold or otherwise disposed of in
the ordinary course of business and any net gain or loss realized upon the
sale or other disposition of any Equity Interest of any Person will be
excluded;
(4) any extraordinary gain or loss will be excluded;
(5) the cumulative effect of a change in accounting principles will
be excluded;
(6) any increase in cost of sales as a result of the step-up in
inventory valuation arising from applying the purchase method of
accounting in accordance with GAAP in connection with any acquisition
consummated after the date of this Indenture, net of taxes, shall be
excluded;
(7) noncash charges relating to employee benefit or other management
compensation plans of the Company or any of its Restricted Subsidiaries or
any noncash compensation charge arising from any grant of stock, stock
options or other equity-based awards of the Company or any of its
Restricted Subsidiaries (excluding in each case any noncash charge to the
extent that it represents an accrual of or reserve for cash expenses in
any future period or amortization of a prepaid cash expense incurred in a
prior period), in each case, to the extent that such noncash charges are
deducted in computing such Consolidated Net Income, will be excluded;
(8) any non-recurring fees, charges or other expenses made or
incurred in connection with (x) the Company's acquisition of ▇▇▇▇▇▇▇
Bedding and the related financing transactions within 180 days of December
19, 2003 or (y) the offer and sale of the Notes; and
(9) any goodwill impairment charges will be excluded.
"Continuing Directors" has the meaning ascribed to such term in clause
4(A) of the definition of Change of Control.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
8
"Credit Agreement" means that certain Credit Agreement, to be dated as of
December 19, 2003, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. and UBS
Securities LLC, as co-syndication agents, Deutsche Bank A.G., New York branch,
as administrative agent, the other agents and lenders named therein and ▇▇▇▇▇▇▇
Bedding, providing for up to $405.0 million of term loan borrowings, $75.0
million of revolving credit borrowings and up to $100.0 million of incremental
facilities, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced or otherwise
restructured in whole or in part from time to time, whether by the same or any
other agent, lender or group of lenders.
"Credit Facilities" means one or more debt facilities (including the
Credit Agreement), indentures or commercial paper facilities or other
agreements, in each case with banks or other institutional lenders or investors
providing for revolving credit loans, term loans, notes, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit, in each case, as amended, restated, modified, supplemented, renewed,
refunded, replaced, restructured or refinanced in whole or in part from time to
time (including any agreement extending the maturity thereof or increasing the
amount of available borrowings thereunder or adding Restricted Subsidiaries of
the Company as additional borrowers or guarantors thereunder), whether by the
same or any other agent, lender or group of lenders.
"Currency Agreement" means, with respect to any Person, any foreign
exchange contract, currency swap agreements, futures contract, options contract,
synthetic cap or other similar agreement or arrangement to which such Person is
a party or of which it is a beneficiary for the purpose of hedging foreign
currency risk.
"Custodian" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Custodian with respect to the Notes in global form, and any and all successors
thereto appointed as Custodian hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 or Section 2.10
hereof, substantially in the form of Exhibit A hereto, except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Equity Offering" means any Equity Offering or IDS Offering.
"Designated Noncash Consideration" means the Fair Market Value of noncash
consideration received by the Company or one or more 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 valuation.
9
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable or exercisable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event (other than in an event
solely within the control of the issuer thereof), matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes mature;
provided, however, that any class of Capital Stock that, by its terms,
authorizes the issuer thereof to satisfy in full its obligations with respect to
payment of dividends or upon maturity, redemption (pursuant to a sinking fund or
otherwise) or repurchase thereof or otherwise by delivery of Capital Stock that
is not Disqualified Stock, and that is not convertible, puttable or exchangeable
for Disqualified Stock or Indebtedness, shall not be deemed Disqualified Stock
so long as such issuer satisfies its obligations with respect thereto solely by
the delivery of Capital Stock that is not Disqualified Stock. Notwithstanding
the preceding sentence, any Capital Stock that would constitute Disqualified
Stock solely because the holders of the Capital Stock have the right to require
the Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless the Company has first
complied with Sections 4.10 and 4.15 hereof.
"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 a public or private sale for cash of Capital Stock
(other than Disqualified Stock).
"Equity Sponsor" means ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V, L.P. and its
Affiliates.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the Euroclear
system, and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Excluded Contributions" means the net cash proceeds received by the
Company after December 19, 2003 from (a) contributions to its common equity
capital and (b) the sale (other than to any of its Subsidiaries or to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement of the Company or any of its Subsidiaries) of Capital
Stock (other than Disqualified Stock) of the Company, in each case designated
within 60 days of the receipt of such net cash proceeds as Excluded
Contributions pursuant to an Officers' Certificate, the cash proceeds of which
are excluded from the calculation set forth in the second clause (3) of Section
4.07(a) hereof; provided that such proceeds may at any time be redesignated by
the Company so as not to constitute Excluded Contributions and will thereafter
be included in the calculation set forth in the second clause (3) of Section
4.07(a) hereof.
10
"Existing Indebtedness" means the Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement and
the Senior Term Loan) in existence on the date of this Indenture.
"Existing Notes" means ▇▇▇▇▇▇▇ Bedding's 7.875% Senior Subordinated Notes
due 2014.
"Fair Market Value" means the value that would be paid by a willing buyer
to an unaffiliated willing seller in a transaction not involving distress or
necessity of either party, determined in good faith by the Board of Directors of
the Company.
"Fixed Charge Coverage Ratio" means, with respect to any specified Person
for any period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the specified
Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees,
repays, repurchases or redeems any Indebtedness (other than ordinary working
capital borrowings) or issues, repurchases or redeems Disqualified Stock of such
Person or preferred stock of a Restricted Subsidiary of such Person subsequent
to the commencement of the period for which the Fixed Charge Coverage Ratio is
being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect
to such incurrence, assumption, Guarantee, repayment, repurchase or redemption
of Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) Asset Acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during
the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date will be given pro forma effect as
if they had occurred on the first day of the four-quarter reference
period, and Consolidated Cash Flow for such reference period will be
calculated on a pro forma basis in accordance with Regulation S-X under
the Securities Act and may include operating expense reductions (net of
continuing associated expenses but excluding non-recurring associated
expenses) for such period resulting from the acquisition which is being
given pro forma effect to that either (a) would be permitted pursuant to
Rule 11-02 of Regulation S-X under the Securities Act, or any successor
provision or (b) constitute Pro Forma Cost Savings;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, will be excluded;
and
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed
of prior to the Calculation Date, will be excluded, but only to the extent
that the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date.
In addition, to the extent not covered by the foregoing, if the Company's
acquisition of ▇▇▇▇▇▇▇ Bedding and the related financing transactions occurred
in the four-quarter period used to determine the Fixed Charge Coverage Ratio,
then the Fixed Charge Coverage Ratio shall be determined giving pro forma
11
effect to such transactions on the same basis given in ▇▇▇▇▇▇▇ Bedding's
offering circular dated December 10, 2003, prepared in connection with the
offering of the Existing Notes.
If any Indebtedness bears a floating rate of interest, the interest expense on
such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Hedging Obligation applicable to such Indebtedness if such Hedging
Obligation has a remaining term as of the date of determination in excess of 12
months).
"Fixed Charges" means, with respect to any specified Person and its
Restricted Subsidiaries for any period, the sum without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including amortization of debt issuance costs and original issue discount,
noncash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to commissions,
discounts and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one or more of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one or more of its
Restricted Subsidiaries, whether or not such Guarantee or Lien is called
upon; plus
(4) commissions, discounts, yield and other financing fees and
financing charges incurred in connection with any transaction (including a
Qualified Receivables Transaction) pursuant to which such Person or any of
its Restricted Subsidiaries may sell, convey or otherwise transfer or
grant a security interest in any accounts receivable or related assets of
the type specified in the definition of Qualified Receivables Transaction;
plus
(5) the product of (a) all dividends, whether paid or accrued and
whether or not in cash, on any series of Disqualified Stock of such Person
or preferred stock of any of its Restricted Subsidiaries, other than
dividends on Equity Interests payable solely in Equity Interests of the
Company (other than Disqualified Stock) or to the Company or a Restricted
Subsidiary of the Company, times (b) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with
GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
12
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depositary or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01(b), 2.06(b)(3),
2.06(b)(4), 2.06(d) or 2.06(f) hereof.
"Government Securities" means direct obligations (or certificates
representing an ownership interest in such obligation) of, or obligations
guaranteed by, the United States of America (including any agency or
instrumentality thereof), and the payment for which the United States pledges
its full faith and credit.
"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 by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements;
(2) any Currency Agreement or Commodity Price Protection Agreement;
and
(3) other agreements or arrangements of a similar character designed
to protect such Person against fluctuations in interest rates.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount at maturity of the Notes sold to Institutional Accredited
Investors.
"IDS Offering" means a bona fide offering in the United States or Canada
for cash of units consisting of common stock and debt securities that are junior
in right of payment to the Notes, in each case issued by the Company.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or nor contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of bankers' acceptances;
(4) representing Capital Lease Obligations;
13
(5) representing the deferred and unpaid balance of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable;
(6) amounts outstanding and other obligations of such Person in
respect of a Qualified Receivables Transaction; or
(7) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes (i) all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person); provided, however, that the amount of Indebtedness of
such Person shall be the lesser of (A) the Fair Market Value of such asset at
such date of determination and (B) the amount of such Indebtedness of such other
Persons; and (ii) to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person. For avoidance of
doubt, any contingent obligation of the Company or any of its Restricted
Subsidiaries to reacquire assets or inventory entered into in the ordinary
course of business in connection with customer financing arrangements will not
constitute Indebtedness or a Guarantee of Indebtedness.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount; and
(2) the principal amount at maturity of the Indebtedness, together
with any interest on the Indebtedness that is more than 30 days past due,
in the case of any other Indebtedness.
In addition, for purposes of determining the outstanding principal
amount at maturity of any particular Indebtedness incurred pursuant to Section
4.09 hereof:
(1) Guarantees or obligations in respect of letters of credit
relating to Indebtedness which is otherwise included in the determination
of a particular amount of Indebtedness shall not be double-counted;
(2) the principal amount at maturity of any Disqualified Stock of
the Company or preferred stock of a Restricted Subsidiary of the Company
shall be the greater of the maximum mandatory redemption or purchase price
(not including, in either case, any redemption or purchase premium) or the
maximum liquidation preference; and
(3) the principal amount at maturity of Indebtedness, Disqualified
Stock of the Company or preferred stock of a Restricted Subsidiary of the
Company issued at a price less than the principal amount at maturity
thereof, maximum fixed redemption or repurchase price thereof or
liquidation preference thereof, as applicable, will be equal to the amount
of the liability or obligation in respect thereof determined in accordance
with GAAP.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
14
"Initial Notes" means the first $269,000,000 aggregate principal amount at
maturity of Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"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 payroll, travel and similar advances to officers and
employees to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP. If the Company or any Restricted Subsidiary of
the Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Subsidiary of the
Company, the Company 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 Restricted Subsidiary not sold or disposed of in an amount
determined as provided in Section 4.07(c) hereof.
"Issue Date" means December 15, 2004, the date of original issuance of the
Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal, or its electronic
equivalent in accordance with Applicable Procedures, to be prepared by the
Company and sent to all Holders of the Notes for use by such Holders in
connection with an Exchange Offer.
"Lien" means, 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, except in connection with any Qualified Receivables
Transaction, any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Management Agreement" means that certain Management Agreement, dated
December 19, 2003, by and between the Company and THL Managers V, LLC.
"Net Cash Proceeds" means, with respect to any Designated Equity Offering,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters, or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof; provided that the net cash proceeds from any IDS
Offering that may be used to redeem Notes pursuant to the first paragraph set
forth in Section 3.06 hereof will be limited to the portion of such net cash
proceeds attributable to the common stock component of the units sold in such
offering.
15
"Net Income" means, with respect to any specified Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including
any cash received upon the sale or other disposition of any Designated Noncash
Consideration or other noncash consideration received in any Asset Sale), net of
the direct costs, fees and expenses relating to such Asset Sale, including:
(1) legal, accounting and investment banking fees and all other
professionals' and advisors' fees;
(2) sales commissions, title and recording expenses and any
relocation expenses incurred as a result of the Asset Sale;
(3) taxes paid or payable or required to be accrued as a result of
the Asset Sale, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements;
(4) amounts required to be applied to the repayment of Indebtedness
(including all interest, premium, penalties, breakage, indemnities and
fees in connection therewith), other than Indebtedness under a Credit
Facility, secured by a Lien on the asset or assets that were the subject
of such Asset Sale;
(5) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Sale; and
(6) any appropriate amounts to be provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed of in such Asset Sale and retained
by the Company or any of its Restricted Subsidiaries after such Asset Sale
or as a reserve established in accordance with GAAP, for adjustment in the
sales prices of the asset or assets, but only for so long as such reserve
is required in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness),
(b) is directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender;
(2) no default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both
any holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment of the Indebtedness to be accelerated or payable prior
to its Stated Maturity; and
(3) as to which the lenders have been notified or acknowledged in
writing that they will not have any recourse to the stock (other than the
stock of an Unrestricted Subsidiary pledged by the Company or any of its
Restricted Subsidiaries) or assets of the Company or any of its Restricted
Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
16
"Notes" has the meaning assigned to it in the preamble to this Indenture.
The Initial Notes and the Additional Notes shall be treated as a single class
for all purposes under this Indenture, and unless the context otherwise
requires, all references to the Notes shall include the Initial Notes and any
Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 11.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means any business that derives a majority of its
revenues from the businesses engaged in by the Company and its Restricted
Subsidiaries on the date of the original issuance of the Initial Notes and /or
activities that are reasonably similar, ancillary, complementary or related to,
or a reasonable extension, development or expansion of, the businesses in which
Company and its Restricted Subsidiaries are engaged on the date of the original
issuance of the Initial Notes.
"Permitted Group" means the group of investors that is party to the
Securityholders' Agreement, as the same may be amended, modified or supplemented
from time to time, provided that no single Person together with its Affiliates
(other than Permitted Holders) Beneficially Owns more of the Voting Stock of the
Company that is Beneficially Owned by such group of investors than is then
collectively Beneficially Owned by the Permitted Holders.
"Permitted Holder" means:
(1) the Equity Sponsor and its Affiliates; and
(2) any Person acting in the capacity of underwriter in connection
with a public or private offering of the Company's Equity Interests.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of
the Company;
(2) any Investment in Cash Equivalents;
17
(3) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Company; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of noncash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(5) any acquisition of assets or Equity Interests solely in exchange
for the issuance of Equity Interests (other than Disqualified Stock) of
the Company;
(6) any Investments received in compromise of obligations of such
Persons incurred in the ordinary course of trade creditors or customers
that were incurred in the ordinary course of business, including pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy
or insolvency of any trade creditor or customer;
(7) Hedging Obligations;
(8) receivables owing to the Company or any Restricted Subsidiary of
the Company and prepaid expenses if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may
include such concessionary trade terms as the Company or any such
Restricted Subsidiary of the Company deems reasonable under the
circumstances;
(9) advances, loans or extensions of credit to suppliers and vendors
in the ordinary course of business;
(10) deposits, bid bonds and performance bonds with governmental
authorities made in the ordinary course of business;
(11) Investments existing on the date of this Indenture and
Investments contributed to the common equity capital of the Company
subsequent to the date of this Indenture;
(12) endorsements of negotiable instruments and documents in the
ordinary course of business;
(13) Investments of a Person or any of its Subsidiaries existing at
the time such Person becomes a Restricted Subsidiary of the Company or at
the time such Person merges or consolidates with the Company or any of its
Restricted Subsidiaries, in either case in compliance with this Indenture,
provided that such Investments were not made by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such merger or consolidation;
(14) the acquisition by a Receivables Subsidiary in connection with
a Qualified Receivables Transaction of Equity Interests of a trust or
other Person established by such Receivables Subsidiary to effect such
Qualified Receivables Transaction, and any other Investment by the Company
or a Restricted Subsidiary of the Company in a Receivables
18
Subsidiary or any Investment by a Receivables Subsidiary in any other
Person in connection with a Qualified Receivables Transaction; provided
that such other Investment is in the form of a note or other instrument
that the Receivables Subsidiary or other Person is required to repay as
soon as practicable from available cash collections less amounts required
to be established as reserves pursuant to contractual agreements with
entities that are not Affiliates of the Company entered into as part of a
Qualified Receivables Transaction;
(15) any obligation of the Company or any of its Restricted
Subsidiaries to reacquire assets or inventory entered into in the ordinary
course of business in connection with customer financing arrangements;
(16) repurchases of the Notes as long as the repurchased Notes are
cancelled promptly after purchase; and
(17) the investment by the Company and its Restricted Subsidiaries
in an Unrestricted Subsidiary solely for the purposes of making an
Investment in a business identified to the Initial Purchasers, in an
aggregate amount not to exceed $6.0 million; and
(18) other Investments in any Person having an aggregate Fair Market
Value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (17) since the date of
this Indenture, not to exceed $25.0 million.
"Permitted Liens" means:
(1) Liens on assets of the Company securing Indebtedness of the
Company in respect of any Credit Facilities or the Senior Term Loan
(including in the form of a guarantee) that is permitted to be incurred
pursuant to Section 4.09;
(2) Liens on property or assets of a Person existing at the time
such Person is merged with or into or consolidated with the Company or any
Subsidiary of the Company; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or
consolidated with the Company or the Subsidiary;
(3) Liens on property existing at the time of acquisition of the
property by the Company or any Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of such
acquisition;
(4) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds, supply bonds, construction bonds or
other obligations of a like nature incurred in the ordinary course of
business;
(5) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (5) of Section 4.09(b) hereof covering
only the assets acquired with such Indebtedness;
(6) Liens existing on the date of this Indenture;
(7) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly
19
instituted and diligently concluded, provided that any reserve or other
appropriate provision as is required in conformity with GAAP has been made
therefor;
(8) judgment Liens not giving rise to an Event of Default so long as
such Liens are adequately bonded and any appropriate legal proceedings
which 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;
(9) Liens arising solely by virtue of any statutory or common law
provisions relating to bankers' Liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
depositary institution; provided that:
(a) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by the Company
in excess of those set forth by regulations promulgated by the Federal
Reserve Board, and
(b) such deposit account is not intended by the Company or any
of its Restricted Subsidiaries to provide collateral to the depositary
institution;
(10) Liens securing the Notes;
(11) any interest or title of a lessor under any Capital Lease
Obligation or operating lease; and
(12) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $10.0 million at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount at maturity (or if issued with original
discount, the aggregate issue price) of such Permitted Refinancing
Indebtedness does not exceed the principal amount at maturity (or accreted
value, if applicable) of the Indebtedness extended, refinanced, renewed,
replaced, defeased or refunded (plus all accrued interest on the
Indebtedness and the amount of all expenses, premiums and defeasance costs
incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity
date no earlier than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness is subordinated in right of
payment to the Notes, on terms at least as favorable to the Holders as
those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
20
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Pro Forma Cost Savings" means, with respect to any period, the reduction
in net costs and related adjustments that (i) were directly attributable to an
Asset Acquisition that occurred during the four-quarter period or after the end
of the four-quarter period and on or prior to the Calculation Date and
calculated on a basis that is consistent with Regulation S-X under the
Securities Act as in effect and applied as of December 19, 2003, (ii) were
actually implemented by the business that was the subject of any such Asset
Acquisition within six months after the date of the Asset Acquisition and prior
to the Calculation Date that are supportable and quantifiable by the underlying
accounting records of such business or (iii) relate to the business that is the
subject of any such Asset Acquisition and that the Company reasonably determines
are probable based upon specifically identifiable actions to be taken within six
months of the date of the Asset Acquisition and, in the case of each of clause
(i), (ii) and (iii) above, are described, as provided below, in an Officers'
Certificate, as if all such reductions in costs had been effected as of the
beginning of such period. Pro Forma Cost Savings described above shall be
accompanied by a certificate delivered to the Trustee from the Company's chief
financial officer that outlines the specific actions taken or to be taken, the
net cost savings achieved or to be achieved from each such action and that, in
the case of clause (iii) above, such savings have been determined to be
probable.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Receivables Transaction" means any transaction or series of
transactions entered into by the Company or any of its Restricted Subsidiaries
pursuant to which the Company or any of its Restricted Subsidiaries sells,
conveys or otherwise transfers to (i) a Receivables Subsidiary (in the case of a
transfer by the Company or any of its Restricted Subsidiaries) and (ii) any
other Person (in the case of a transfer by a Receivables Subsidiary), or grants
a security interest in, any accounts receivable (whether now existing or arising
in the future) of the Company or any of its Restricted Subsidiaries, and any
assets related thereto, including all collateral securing such accounts
receivable, all contracts and all Guarantees or other Obligations in respect of
such accounts receivable, proceeds of such accounts receivable and other assets
which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.
"Receivables Subsidiary" means a Subsidiary of the Company which engages
in no activities other than in connection with the financing of accounts
receivable and which is designated by the Board of Directors of the Company (as
provided below) as a Receivables Subsidiary (a) no portion of the Indebtedness
or any other Obligations (contingent or otherwise) of which (i) is Guaranteed by
the Company or any Restricted Subsidiary of the Company (excluding Guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to representations, warranties, covenants and indemnities entered into
in the ordinary course of business in connection with a Qualified Receivables
Transaction), (ii) is recourse to or obligates the Company or any Restricted
Subsidiary of the Company in any way other than pursuant to customary
representations, warranties, covenants and indemnities entered into in
connection with a Qualified Receivables Transaction or (iii) subjects any
property or asset of the Company or any Restricted Subsidiary of the Company
(other than accounts receivable and related assets as provided in the definition
of Qualified Receivables Transaction), directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of
business in connection with a Qualified Receivables
21
Transaction, (b) with which neither the Company nor any Restricted Subsidiary of
the Company has any material contract, agreement, arrangement or understanding
other than on terms no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Company, other than fees payable in the ordinary course of
business in connection with servicing accounts receivable and (c) with which
neither the Company nor any Restricted Subsidiary of the Company has any
obligation to maintain or preserve such Subsidiary's financial condition or
cause such Subsidiary to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Company will be evidenced to the
Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of December 15, 2004, among the Company and the Initial Purchasers, as
such agreement may be amended, modified or supplemented from time to time and,
with respect to any Additional Notes, one or more registration rights agreements
among the Company and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes, or exchange such Additional
Notes for registered Notes, to register such Additional Notes under the
Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Global Note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount at maturity of the Notes sold in reliance on Rule 903 of
Regulation S.
"Replacement Assets" means (1) non-current tangible assets that will be
used or useful in a Permitted Business or (2) all or substantially all of the
assets of a Permitted Business or a majority of the Voting Stock of any Person
engaged in a Permitted Business that will become on the date of acquisition
thereof a Restricted Subsidiary.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Stock Agreements" means those certain restricted stock
agreements, dated as of December 19, 2003, by and between the Company and the
employees party thereto.
"Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary or a Receivables Subsidiary.
22
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholders' Agreement" means that certain securityholders'
agreement, dated as of December 19, 2003 hereof, by and among the Company,
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ Parallel Fund V, L.P., ▇▇▇▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇ Fund V, L.P., 1997 ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ Trust, ▇▇▇▇▇▇ ▇. ▇▇▇
Investors Limited Partnership, ▇▇▇▇▇▇ Investments Holdings, LLC, ▇▇▇▇▇▇
Investments Employees' Securities Company I, LLC, ▇▇▇▇▇▇ Investments Employees'
Securities Company II, LLC, the employees listed on Exhibit A thereto, Fenway
Partners Capital Fund II, L.P., FPIP, LLC, FPIP Trust, LLC, and the senior
managers listed on the signature pages thereto.
"Senior Term Loan" means the $140.0 million of term loan borrowing
pursuant to that certain senior unsecured term loan agreement, to be dated as of
December 19, 2003, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. and UBS
Securities LLC, as co-syndication agents, Deutsche Bank AG, New York Branch, as
administrative agent, and the other agents and lenders named therein, providing
for up to $140.0 million of term loan borrowings, and including any related
notes, Guarantees, instruments and agreements executed in connection therewith,
and in each case as amended from time to time, on terms no less favorable to the
Holders than the agreement on the date of this Indenture.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1 - 02 of Regulation S - X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"▇▇▇▇▇▇▇ Bedding" means ▇▇▇▇▇▇▇ Bedding Company, a Delaware corporation.
"Special Interest" means all Special Interest then owing pursuant to the
Registration Rights Agreement.
"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 documentation governing
such Indebtedness as of the date of this Indenture, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association, partnership, limited liability
company 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,
23
managers or trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb), and the rules and regulations promulgated thereunder.
"Total Tangible Assets" means the total consolidated assets, less goodwill
and intangibles, of the Company and its Restricted Subsidiaries, as shown on the
most recent balance sheet of the Company.
"Trustee" means the party named as such in the preamble to this Indenture
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear and is
not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons who
are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries; and
(5) either (a) has at least one director on its Board of Directors
that is not a director or executive officer of the Company or any of its
Restricted Subsidiaries or (b) has at least one executive officer that is
not a director or executive officer of the Company or any of its
Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary
will be evidenced to the Trustee by filing with the Trustee a certified copy of
the Board Resolution giving effect to such
24
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date, and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company will be in
default of Section 4.09 hereof. The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time, entitled generally to vote in the election of
the Board of Directors of such Person (without regard to the occurrence of any
contingency).
"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 at maturity of such
Indebtedness.
Section 1.02 Other Definitions.
DEFINED IN
TERM SECTION
-------------------------------------------------- ----------
"Affiliate Transaction"........................... 4.11
"Asset Sale Offer"................................ 3.09
"Authentication Order"............................ 2.02
"Change of Control Offer"......................... 4.15
"Change of Control Payment"....................... 4.15
"Change of Control Payment Date".................. 4.15
"Covenant Defeasance"............................. 8.03
"DTC"............................................. 2.03
"Event of Default"................................ 6.01
"Excess Proceeds"................................. 4.10
"incur"........................................... 4.09
"Legal Defeasance"................................ 8.02
"Offer Amount".................................... 3.09
"Offer Period".................................... 3.09
25
DEFINED IN
TERM SECTION
---- ----------
"Paying Agent"................................... 2.03
"Payment Blockage Notice"........................ 10.03
"Payment Default"................................ 6.01
"Permitted Debt"................................. 4.09
"Purchase Date".................................. 3.09
"Registrar"...................................... 2.03
"Restricted Payments"............................ 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein have the meanings so assigned to them either in
the TIA or SEC rule.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
(7) "including" means "including without limitation;" and
26
(8) references to sections of or rules under the Securities Act, the
Exchange Act or the TIA will be deemed to include substitute, replacement
or successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes will be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage in addition to those set forth in Exhibit A. Each
Note will be dated the date of its authentication. The Notes shall be in
denominations of $1,000 principal amount at maturity and integral multiples
thereof.
The terms and provisions contained in the Notes will constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes issued in definitive form will be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note will represent such of the outstanding Notes as will be specified
therein, and each shall provide that it represents the aggregate principal
amount at maturity of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount at maturity of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions thereof and transfers of interests therein.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount at maturity of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" of Euroclear and the provisions of the "General
Terms and Conditions of Clearstream Banking" and "Customer Handbook" of
Clearstream will be applicable to transfers of beneficial interests in the
Regulation S Global Notes that are held by Participants through Euroclear or
Clearsteam.
(d) Book-Entry Provisions. This Section 2.01(d) shall apply only to Global
Notes deposited with the Trustee, as custodian for the Depositary. Participants
and Indirect Participants shall have no rights under this Indenture or any
Global Note with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as custodian for the Depositary, and the Depositary
shall be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants or Indirect
Participants, the Applicable Procedures or the operation of customary practices
of the Depositary governing the exercise of the rights of a holder of a
beneficial interest in any Global Note.
27
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note will nevertheless be
valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by
an Officer (an "Authentication Order"), authenticate Notes for original issue.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as the Trustee to deal with Holders, the Company or an Affiliate of
the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
will keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company will notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes, and the
Trustee hereby agrees to so initially act.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or Special Interest, if any, or interest on the Notes, and will notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it relating to the Notes to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it relating to the Notes to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary of the Company) will have no further liability for the
money. If the Company or a Subsidiary of the Company acts as Paying Agent, it
will segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any Event of Default under Sections
6.01(8) and 6.01(9) hereof relating to the Company, the Trustee will serve as
Paying Agent for the Notes.
Section 2.05 Holder Lists.
28
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company will furnish or cause to be furnished to the
Trustee at least seven Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of the Holders and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it
is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within
120 days after the date the Company received such notice from the
Depositary;
(2) the Company in its sole discretion determines that the Global
Notes (in whole but not in part) should be exchanged for Definitive Notes
and delivers a written notice to such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of
Default with respect to the Notes.
Upon the occurrence of either of the events set forth in clause (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c), (f) or (i)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global Note
may be transferred to Persons
29
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(1) above, the transferor
of such beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (B)(i) above.
Upon consummation of an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount at maturity of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
30
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i)
a Broker-Dealer, (ii) a Person participating in the distribution of
the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an
31
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount at maturity of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount at maturity of the
applicable Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Restricted Definitive
Note in the appropriate principal amount. Any Restricted Definitive Note issued
in exchange for a beneficial
32
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from or through the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Restricted Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the
Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of
the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
Upon satisfaction of any of the conditions of any of the clauses of
this Section 2.06(c)(2), the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of
such beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or
33
Indirect Participant on behalf of such holder, and the Trustee shall
reduce or cause to be reduced in a corresponding amount pursuant to
Section 2.06(h), the aggregate principal amount at maturity of the
applicable Restricted Global Note.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for an Unrestricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note, then, upon satisfaction of the conditions
set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount at maturity of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the Company
will execute and the Trustee will authenticate and deliver to the Person
designated in the instructions an Unrestricted Definitive Note in the
appropriate principal amount. Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
requests through instructions to the Registrar from or through the
Depositary and the Participant or Indirect Participant. The Trustee will
deliver such Unrestricted Definitive Notes to the Persons in whose names
such Notes are so registered. Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Restricted Definitive Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Restricted Definitive Note for a beneficial
interest in a Restricted Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a
34
certificate to the effect set forth in Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount at maturity of,
in the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, in the
case of clause (C) above, the Regulation S Global Note, and in all
other cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Restricted Definitive Notes for a
beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Restricted Definitive Notes to a
Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably
35
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(2), the Trustee will cancel the Restricted Definitive
Notes and increase or cause to be increased the aggregate principal amount
at maturity of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Unrestricted Definitive Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Notes to
a Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount at maturity of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D)
or (3) above at a time when an Unrestricted Global Note has not yet been
issued, the Company will issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount at maturity of Definitive
Notes so transferred.
Unrestricted Definitive Notes cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a
Restricted Definitive Note.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.06(e), the Registrar will register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a
36
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Restricted Definitive Notes for an
Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications
in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Restricted Definitive Notes to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of this
Section 2.06(e)(2), the Trustee shall cancel the prior Restricted
Definitive Note and the Company shall execute, and upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive
Note in the appropriate aggregate principal amount to the Person
designated by the Holder of such prior Restricted Definitive Note in
instructions delivered to the Registrar by such Holder.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes may transfer such Unrestricted
Definitive Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to
37
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount at maturity of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are not
affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount
equal to the principal amount at maturity of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer by Persons that certify
in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of
the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the
aggregate principal amount at maturity of the applicable Restricted Global Notes
to be reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Restricted
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate
principal amount.
(g) Legends. The following legends will appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE ""SECURITIES ACT''), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO HOLDINGS OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER
38
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR
THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF
HOLDINGS SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES, AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE
IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND HOLDINGS SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2),
(c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06
(and all Notes issued in exchange therefor or substitution thereof)
will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
39
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3) Original Issue Discount Legend. Each Note will bear a legend in
substantially the following form:
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
INFORMATION REGARDING THIS SECURITY'S ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY CAN BE OBTAINED BY CONTACTING
▇▇▇▇▇ ▇▇▇▇▇, VICE PRESIDENT AND TREASURER, AT ▇▇▇▇▇▇▇ COMPANY, ONE CONCOURSE
PARKWAY, SUITE 800, ATLANTA, GA 30328."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount at maturity of Notes represented by such Global Note
will be reduced accordingly and an endorsement will be made on such Global Note
by the Trustee or by the Depositary at the direction of the Trustee to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company
will execute and the Trustee will authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section
2.02 or at the Registrar's request.
(2) No service charge will be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of
or exchange of any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
will be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
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(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the day
of selection;
(B) to register the transfer of or to exchange any Note
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding interest payment date.
(6) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of, premium and
Special Interest, if any, and interest on, such Notes and for all other
purposes, and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.
(7) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company will issue and the Trustee, upon receipt of an
Authentication Order, will authenticate a replacement Note. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note issued in accordance with this Section 2.07, is an
additional obligation of the Company and will be entitled to all of the benefits
of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all of the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
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If the principal amount at maturity of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary of the Company
or an Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that date
such Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount at
maturity of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, or by any Affiliate of the Company, will be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee will be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order, will
authenticate temporary Notes. Temporary Notes will be substantially in the form
of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate certificated Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this
Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent will forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment. The Trustee and no
one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will destroy canceled Notes
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all canceled Notes will be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13 Issuance of Additional Notes.
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The Company shall be entitled, subject to its compliance with Section 4.09
hereof, to issue Additional Notes under this Indenture which shall have
identical terms as the Initial Notes issued on the date of this Indenture, other
than with respect to the date of issuance and issue price. The Initial Notes
issued on the date of this Indenture, any Additional Notes and all Exchange
Notes issued with respect thereto shall be treated as a single class for all
purposes under this Indenture.
With respect to any Additional Notes, the Company shall set forth in a
Board Resolution and an Officers' Certificate, a copy of each which shall be
delivered to the Trustee, the following information:
(a) the aggregate principal amount at maturity of such
Additional Notes to be authenticated and delivered pursuant to this
Indenture;
(b) the issue price, the issue date and the CUSIP number of
such Additional Notes; and
(c) whether such Additional Notes shall be transfer restricted
Notes.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption
shall occur;
(2) the redemption date;
(3) the principal amount at maturity of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to
purchase at any time, the Trustee will select Notes (or portion of Notes) for
redemption or purchase as follows:
(1) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities
exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount
43
thereof to be redeemed or purchased. Notes and portions of Notes selected will
be in amounts of $1,000 or whole multiples of $1,000, except that if all of the
Notes of a Holder are to be redeemed or purchased, the entire outstanding amount
of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed or purchased. Except as provided in the preceding sentence, provisions
of this Indenture that apply to Notes called for redemption or purchase also
apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company will mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address, except that redemption notices may
be mailed more than 60 days prior to a redemption date if the notice is issued
in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Article 8 or Article 12 of this Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount at maturity of such Note to be redeemed and that, after
the redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion of the original Note will
be issued in the name of the Holder of such original Note upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes or portions of Notes called for redemption
ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee will give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
has delivered to the Trustee, at least 45 days prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
Section 3.04 Effect of Notice of Redemption.
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Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
On or prior to 10:00 a.m. Eastern Time on any redemption or purchase date,
the Company will deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest and
Special Interest, if any, on all Notes to be redeemed or purchased on that date.
The Trustee or the Paying Agent will promptly, and in any event within two
Business Days after the redemption or purchase date, return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption or purchase price of, and accrued
interest and Special Interest, if any, on, all Notes to be redeemed or
purchased.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption or purchase date, interest will cease to accrue on the
Notes or the portions of Notes called for redemption or purchase. If a Note is
redeemed or purchased on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to December 15, 2007, the Company may on any one or
more occasions redeem up to 40% of the aggregate principal amount at maturity of
Notes issued under this Indenture at a redemption price equal to 110.0% of the
Accreted Value thereof, plus accrued and unpaid interest and Special Interest,
if any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), with the Net Cash Proceeds from one or more Designated Equity Offerings
by the Company or any direct or indirect parent of the Company (so long as such
Net Cash Proceeds are contributed by such parent to the Company as common
equity); provided that:
(1) at least 60% of the aggregate principal amount at maturity of
Notes initially issued under this Indenture remains outstanding
immediately after the redemption (excluding any Notes held by the Company
and its Subsidiaries); and
(2) the redemption occurs within 90 days of the date of the closing
of such Designated Equity Offering.
45
(b) Except as described in Section 3.07(a), the Notes are not redeemable
at the Company's option prior to December 15, 2009. The Company is not
prohibited, however, from acquiring the Notes by means other than a redemption,
whether pursuant to an issuer tender offer, open market transactions or
otherwise, so long as such acquisition does not otherwise violate the terms of
this Indenture.
(c) On or after December 15, 2009, the Company may redeem all or a part of
the Notes upon not less than 30 nor more than 60 days notice, at the redemption
prices (expressed as percentages of principal amount at maturity) set forth
below plus accrued and unpaid interest and Special Interest, if any, on the
Notes redeemed, 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), if redeemed during the twelve-month period
beginning on December 15 of the years indicated below:
Year Percentage
---- ----------
2009.......................................... 105.000%
2010.......................................... 103.333%
2011.......................................... 101.666%
2012 and thereafter........................... 100.000%
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof. Unless the Company defaults
in payment of the redemption price, on and after the redemption date, interest
will cease to accrue on the Notes or portions thereof called for redemption.
Section 3.08 Mandatory Redemption.
Except as set forth below, the Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.
Subject to the provisions of Section 3.09 hereof, if any Notes are to be
outstanding on June 15, 2010, at least 30 days but not more than 60 days before
June 15, 2010, the Company will mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder at its registered address, providing
notice that it will redeem for cash a principal amount at maturity of each Note
then outstanding equal to the Mandatory Principal Redemption Amount, plus a
premium equal to 5.0% of the Mandatory Principal Redemption Amount. Such notice
will include the other information required by Section 3.03. On June 15, 2010,
the Company will redeem for cash a portion of each Note then outstanding equal
to the Mandatory Principal Redemption Amount, plus a premium equal to 5.0% of
the Mandatory Principal Redemption Amount. No partial redemption or repurchase
of the Notes pursuant to any other provision of this Indenture will alter the
obligation of the Company to make this redemption with respect to any Notes then
outstanding. "Mandatory Principal Redemption Amount" means as of the last day of
the first accrual period (as defined in Internal Revenue Code section
1272(a)(5)) ending after December 15, 2009, the excess, if any, of (a) the
aggregate amount of accrued and unpaid interest and all accrued and unpaid
original issue discount (as defined in Internal Revenue Code section 1273(a)(1))
on the note, over (b) an amount equal to the product of (i) the issue price (as
defined in Internal Revenue Code sections 1273(b) and 1274(a)) of the note
multiplied by (ii) the yield to maturity of the note. For the avoidance of
doubt, the Mandatory Principal Redemption Amount, but not the premium payable
therewith, shall reduce the outstanding principal amount of the Notes. The
Company will calculate the Mandatory Principal Redemption Amount and will
certify its calculations to the Trustee.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
46
In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or required
prepayments or redemptions of such Indebtedness with the excess proceeds of
sales of assets. The Asset Sale Offer will be completed no earlier than 30 days
and no later than 60 days after notice of the Asset Sale Offer is provided to
the Holders, except to the extent that a longer period is required by applicable
law (the "Offer Period"). No later than three Business Days after the
termination of the Offer Period (the "Purchase Date"), the Company will apply
all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other
pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than
the Offer Amount has been tendered, all Notes and such other pari passu
Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes
so purchased will be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Special Interest, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
will contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the
terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue
to accrue interest;
(4) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest and Special Interest, if any, after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the
Asset Sale Offer may elect to have Notes purchased in integral multiples
of $1,000 aggregate principal amount at maturity only;
(6) that Holders electing to have Notes purchased pursuant to the
Asset Sale Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transferred by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three Business Days before the Purchase
Date;
(7) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount at maturity of the Note (or portion thereof) the Holder
delivered for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing his
election to have such Note purchased;
47
(8) that, if the aggregate principal amount at maturity of Notes and
other pari passu Indebtedness surrendered by holders thereof exceeds the
Offer Amount, the Trustee will select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis based on the aggregate
principal amount at maturity of Notes and such other pari passu
Indebtedness surrendered (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $1,000
aggregate principal amount at maturity, or integral multiples thereof,
will be purchased); and
(9) that Holders whose Notes are purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer), which
unpurchased portion must be equal to $1,000 in principal amount at
maturity or an integral multiple thereof.
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof properly tendered and not withdrawn pursuant
to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes properly tendered and not withdrawn, and will deliver or cause to be
delivered to the Trustee the Notes properly accepted together with an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.09. The
Company, the Depositary or the Paying Agent, as the case may be, will promptly
(but in any case not later than five Business Days after the Purchase Date) mail
or deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for purchase, and the
Company will promptly issue a new Note, and the Trustee, upon written request
from the Company will authenticate and mail or deliver (or cause to be
transferred by book-entry) such new Note to such Holder, in a principal amount
equal to any unpurchased portion of the Note surrendered; provided that each new
Note will be in a principal amount at maturity of $1,000 or an integral multiple
thereof. Any Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company will publicly announce the results of
the Asset Sale Offer on, or as soon as practicable after, the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Special Interest, if any, on, the Notes on the dates and
in the manner provided in this Indenture and the Notes. Principal, premium, if
any, and interest and Special Interest, if any, will be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. Such Paying Agent shall
return to the Company promptly, and in any event, no later than three Business
Days following the date of payment, any money (including accrued interest) that
exceeds such amount of principal, premium, if any, and interest paid on the
Notes. The Company will pay all Special Interest, if any, in the same manner on
the dates and in the amounts set forth in the Registration Rights Agreement. If
a payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue on such payment for the intervening period.
48
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be presented or
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company fails to maintain any such required office or agency or fails
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission will in any manner relieve the Company of
its obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company will furnish to the Holders or
cause the Trustee to furnish to the Holders, within the time periods specified
in the SEC's rules and regulations:
(1) all quarterly and annual financial reports that would be
required to be filed with the SEC on Forms 10-Q and 10-K if the Company
were required to file such reports; and
(2) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports.
Notwithstanding the foregoing, such requirements will be deemed satisfied
prior to the commencement of the Exchange Offer or the effectiveness of a Shelf
Registration Statement by the filing with the SEC of the Exchange Offer
Registration Statement and/or the Shelf Registration Statement, and any
amendments thereto, with such financial information that satisfies Regulation
S-X of the Securities Act; provided that any such registration statement is
filed within the time periods specified in the Registration Rights Agreement.
All such reports will be prepared in all material respects in accordance
with all of the rules and regulations applicable to such reports. Each annual
report on Form 10-K will include a report on the Company's consolidated
financial statements by the Company's certified independent accountants. In
49
addition, following the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, whether or not required by the SEC, the Company
will file a copy of all of the information and reports referred to in clauses
(1) and (2) above with the SEC for public availability within the time periods
specified in the rules and regulations applicable to such reports (unless the
SEC will not accept such a filing) and will post the reports on its website
within those time periods. The Company will at all times comply with TIA Section
314(a).
(b) If, at any time the Company is no longer subject to the periodic
reporting requirements of the Exchange Act for any reason, the Company will
nevertheless continue filing the reports specified in Section 4.03(a) hereof
with the SEC within the time periods specified above unless the SEC will not
accept such a filing. The Company will not take any action for the purpose of
causing the SEC not to accept any such filings. If, notwithstanding the
foregoing, the SEC will not accept the Company's filings for any reason, the
Company will post the reports referred to in Section 4.03(a) hereof on its
website within the time periods that would apply if the Company were required to
file those reports with the SEC.
(c) If at any time during the first two years after the date of this
Indenture the Company is not required to file with the SEC the reports required
by Section 4.03(a) hereof, the Company 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.
(d) The Company will be deemed to have furnished such reports to the
Holders if it has filed such reports with the SEC via the ▇▇▇▇▇ filing system
and such reports are publicly available.
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of such entity and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether such entity has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge such entity
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default has occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action such entity is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 hereof shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company will deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate
50
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments and governmental levies,
except such as are being contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenant that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law has been
enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend on, or make any other payment or
distribution on account of, the Company's or any of its Restricted
Subsidiaries' Equity Interests (including any payment in connection with
any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the Company's or any
of its Restricted Subsidiaries' Equity Interests in their capacity as such
(in each case, other than dividends or distributions payable (A) in Equity
Interests (other than Disqualified Stock) of the Company or (B) to the
Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including in connection with any merger or consolidation involving the
Company) any Equity Interests of the Company or any direct or indirect
parent of the Company held by Persons other than the Company or a
Restricted Subsidiary of the Company;
(3) make any principal payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any Indebtedness
that is subordinated to the Notes except a payment of principal at the
Stated Maturity thereof, other than:
(A) the purchase, repurchase or other acquisition of any such
subordinated Indebtedness 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 such payment, purchase,
redemption, defeasance or acquisition, and
(B) intercompany Indebtedness described in clause (6) of
Section 4.09(b) hereof; or
51
(4) make any Restricted Investment (all such payments and other
actions set forth in clauses (1) through (4) above being collectively
referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence of such Restricted Payment;
(2) the Company 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)
hereof;
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after December 19, 2003 (excluding Restricted Payments
permitted by clauses (2), (3), (4), (6), (7), (8), (10) and (12) of
paragraph (b) below), is less than the sum, without duplication of:
(A) 50% of the Consolidated Net Income of the Company (it
being understood that in calculating Consolidated Net Income for
this clause (3)(a) only, (A) any of the Company' noncash interest
expenses or amortization of original issue discount shall be
excluded and (B) any other expenses actually incurred by the
Company, up to an aggregate of $2.0 million per fiscal year, shall
also be excluded) for the period (taken as one accounting period)
from the beginning of the first fiscal quarter commencing after
December 19, 2003 to the end of the Company's most recently ended
fiscal quarter for which internal consolidated financial statements
of the Company are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is a deficit,
less 100% of such deficit), plus
(B) 100% of the aggregate Net Cash Proceeds received by the
Company subsequent to December 19, 2003 (i) as a contribution to its
common equity capital or (ii) from the issue or sale of Equity
Interests of the Company (other than Excluded Contributions or
Disqualified Stock) or (iii) as a result of the issuance or sale of
convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company or any Restricted
Subsidiary of the Company that have been converted into or exchanged
for such Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Subsidiary of the
Company), except any Net Cash Proceeds that have been utilized for
any other purpose under this Section 4.07 (other than pursuant to
clause (13) of Section 4.07(b) hereof), plus
(C) an amount equal to the net reduction in Investments made
by the Company and its Restricted Subsidiaries subsequent to
December 19, 2003 resulting from payments of interest on
Indebtedness, dividends, repayments of loans or advances or other
transfers of assets, in each case to the Company or any such
Restricted Subsidiary from any such Investment, or from the net cash
proceeds from the sale of any such Investment, or from a
redesignation of an Unrestricted Subsidiary to a Restricted
Subsidiary of the Company, but only if and to the extent such
amounts are not included in the calculation of Consolidated Net
Income and not to exceed in the case of any Investment the amount of
the Investment previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary; provided that
any amounts in excess of the amount of
52
the Investment previously made may be added to the amounts otherwise
available under this clause (C) to make Restricted Investments
pursuant to this clause (3), plus
(D) 100% of the Fair Market Value, such determination to be
conclusive and evidenced by an Officers' Certificate delivered to
the Trustee, of any Permitted Business (including Capital Stock of a
Permitted Business that is or becomes a Restricted Subsidiary)
received by the Company or a Restricted Subsidiary of the Company as
consideration for the issuance by the Company subsequent to December
19, 2003 of Capital Stock (other than Disqualified Stock) of the
Company or as a contribution to the common equity capital of the
Company.
(b) The provisions of Section 4.07(a) will not prohibit:
(1) the payment of any dividend or other distribution within 60 days
after the date of declaration thereof, if at the date of declaration the
dividend payment or other distribution would have complied with the
provisions of this Indenture;
(2) the making of any Restricted Payment with the Net Cash Proceeds
of a substantially concurrent sale (other than to a Restricted Subsidiary
of the Company) of Equity Interests of the Company (other than
Disqualified Stock) or contribution to the common equity capital of the
Company to the extent not previously utilized for any other purpose under
this Section 4.07;
(3) the redemption, repurchase, retirement, defeasance or other
acquisition of subordinated Indebtedness of the Company or any Restricted
Subsidiary of the Company, in exchange for, or with the net cash proceeds
from a substantially concurrent issuance or sale of, Permitted Refinancing
Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;
(5) so long as no Default has occurred and is continuing or would be
caused thereby, the purchase, repurchase, retirement or other acquisition
for value of any Equity Interests of the Company owned by employees,
former employees, directors, former directors, consultants or former
consultants of the Company or any of its Subsidiaries (or permitted
transferees, assigns, estates or heirs of such employees, former
employees, directors, former directors, consultants or former
consultants); provided, however, that the aggregate amount paid pursuant
to this clause (5) will not, in the aggregate, exceed $3.0 million per
fiscal year of the Company; provided that any repurchases, redemptions or
other acquisitions or retirements for value that are or have been made
after December 27, 2003 to the date of this Indenture shall be included in
the calculation of any such permitted repurchases, redemptions or other
acquisitions or retirements for value permitted to be made during the
fiscal year ended December 25, 2004; and provided further that the Company
may carry over and make in subsequent calendar years, in addition to the
amounts permitted for such calendar year, the amount of such purchases,
redemptions or other acquisitions or retirements for value permitted to
have been made but not made in any preceding calendar year up to a maximum
of $12.0 million in any calendar year; and provided further that such
amount in any calendar year may be increased by an amount not to exceed
(i) the Net Cash Proceeds from the sale of Equity Interests (other than
Disqualified Stock) of the Company to employees, officers, directors or
consultants of the Company and its Restricted Subsidiaries that occurs
after the date of this Indenture (to the extent the cash proceeds from the
sale of such Equity Interests have not otherwise been applied to the
payment of Restricted Payments pursuant to clause (2) above or previously
applied to the payment of Restricted Payments pursuant to this clause
(5)),
53
plus (ii) the cash proceeds of key man life insurance policies received by
the Company and its Restricted Subsidiaries after the date of this
Indenture, less any amounts previously applied to the payment of
Restricted Payments pursuant to this clause (5); provided further that
cancellation of Indebtedness owning to the Company or any of its
Restricted Subsidiaries from employees, officers, directors and
consultants of the Company or any of its Restricted Subsidiaries in
connection with a repurchase of Equity Interests of the Company from such
Persons will not be deemed to constitute a Restricted Payment for purposes
of this covenant or any other provisions of this Indenture; provided
further that the Net Cash Proceeds from such sales of Equity Interests
described in clause (i) of this clause (5) shall be excluded from the
second clause 3(b) of the preceding paragraph to the extent such proceeds
have been or are applied to the payment of Restricted Payments pursuant to
this clause (5);
(6) the repurchase of Capital Stock deemed to occur upon exercise of
stock options, warrants or other convertible securities to the extent the
shares of such Capital Stock represent a portion of the exercise price of
such options, warrants or convertible securities;
(7) so long as no Default has occurred and is continuing or would be
caused thereby, the declaration and payment of dividends or distributions
to holders of any class or series of Disqualified Stock of the Company or
preferred stock of its Restricted Subsidiaries issued after the date of
this Indenture pursuant to Section 4.09 hereof;
(8) any redemption, repurchase, retirement, defeasance or other
acquisition for value of Disqualified Stock of the Company or a Restricted
Subsidiary of the Company made by exchange for, or out of the net cash
proceeds of the substantially concurrent sale of, Disqualified Stock of
the Company or such Restricted Subsidiary, as the case may be; provided
that any such new Disqualified Stock is issued by the issuer of the
Disqualified Stock being redeemed, repurchased, retired, defeased or
otherwise acquired for value and that such new Disqualified Stock is
issued pursuant to Section 4.09 hereof;
(9) so long as no Default has occurred and is continuing or would be
caused thereby, the payment of dividends on the Company's Equity Interests
following the first public offering of the Company's Equity Interests
after the date of this Indenture, of up to 6% per annum of the Net Cash
Proceeds received by the Company in such public offering;
(10) Investments that are made with Excluded Contributions;
(11) so long as no Default has occurred and is continuing or would
be caused thereby, upon the occurrence of a Change of Control and within
60 days after completion of the Change of Control Offer pursuant to
Section 4.15 hereof (including the purchase of all Notes tendered), any
purchase or redemption of Indebtedness of the Company or any Restricted
Subsidiary of the Company subordinated to the Notes, as applicable, that
is required to be repurchased or redeemed pursuant to the terms thereof as
a result of such Change of Control, at a purchase price not greater than
101% of the outstanding principal amount at maturity thereof (plus accrued
and unpaid interest);
(12) the declaration and payment of dividends or other distributions
on the Issue Date by the Company to holders of its Capital Stock or other
Equity Interests in the Company in an amount not to exceed the net
proceeds received from the sale of the Notes; and
(13) so long as no Default has occurred and is continuing or would
be caused thereby, other Restricted Payments in an aggregate amount not to
exceed $30.0 million since December
54
19, 2003; provided that Holdings shall not declare or pay any dividend on,
or make any other payment or distribution on account of, Holdings' Equity
Interests pursuant to this clause (13) until the earlier to occur of (x)
the consummation of an initial public offering of Equity Interests of
Holdings and (y) the second anniversary of the Issue Date.
(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 Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any asset(s) or securities that are required to be
valued by this Section 4.07 will, if the Fair Market Value exceeds $2.0 million,
be determined by the Board of Directors of the Company whose Board Resolution
with respect thereto shall be delivered to the Trustee.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company 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
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Company 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 Company or any of its
Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any
of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply, however, to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit Facilities
as in effect on the Issue Date;
(2) the Indenture and the Notes;
(3) the Senior Term Loan;
(4) applicable law or any applicable rule or regulation;
(5) any agreement or instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the
extent such Indebtedness or Capital Stock was incurred in connection with
or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, provided that, in the case of Indebtedness, such Indebtedness
was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in leases, licenses or
similar contracts entered into in the ordinary course of business or that
restrict the subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract;
55
(7) purchase money obligations for property acquired in the ordinary
course of business that restrict the transfer of such property; provided
that any such encumbrance or restriction is released to the extent the
underlying Lien is released or the related Indebtedness is repaid;
(8) any agreement for the sale or other disposition of a Restricted
Subsidiary or the assets of a Restricted Subsidiary pending the sale or
other disposition of such assets or Restricted Subsidiary;
(9) Permitted Refinancing Indebtedness, provided that the
encumbrances and restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are not materially more restrictive,
taken as a whole, as determined by the Board of Directors of the Company
in their reasonable and good faith judgment, than those contained in the
agreements governing the Indebtedness being refinanced;
(10) Liens securing Indebtedness otherwise permitted to be incurred
under Section 4.09 hereof that limit the right of the debtor to dispose of
or transfer the assets subject to such Liens;
(11) any transfer of, agreement to transfer, or option or right with
respect to, any property or assets of the Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture;
(12) provisions with respect to the disposition or distribution of
assets or property and other customary provisions in joint venture
agreements, asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business;
(13) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(14) Indebtedness permitted to be incurred pursuant to Section
4.09(b)(5) hereof for property acquired in the ordinary course of business
that only imposes encumbrances or restrictions on the property so
acquired;
(15) net worth provisions in leases and other agreements entered
into by the Company or any Restricted Subsidiary in the ordinary course of
business;
(16) Indebtedness or other contractual requirements of a Receivables
Subsidiary in connection with a Qualified Receivables Transaction,
provided that such restrictions apply only to such Receivables Subsidiary;
and
(17) agreements governing Indebtedness permitted to be incurred
pursuant to Section 4.09 hereof, provided that the provisions relating to
such encumbrances or restrictions contained in such Indebtedness, taken as
a whole, are not materially more restrictive to the Company, as determined
by the Board of Directors of the Company in their reasonable and good
faith judgment, than the provisions contained in the Credit Agreement, the
Senior Term Loan or the indenture governing the Existing Notes, in each
case, as in effect on the Issue Date;
(18) any other agreement pursuant to which any Restricted Subsidiary
of the Company incurs Indebtedness or issues Disqualified Stock or
preferred stock after the Issue Date in accordance with Section 4.09
hereof and, in each case, either (A) the provisions relating to such
encumbrances or restrictions contained in such Indebtedness, taken as a
whole, are not materially more restrictive to the Company, as determined
by the Board of Directors of the Company in their reasonable and good
faith judgment, than the provisions contained in the Credit Agreement,
56
the Senior Term Loan or the indenture governing the Existing Notes, in
each case, as in effect on the Issue Date, or (B) any encumbrance or
restriction contained in such Indebtedness is not expected to prohibit
(except upon a default or event of default thereunder) the payment of
dividends in an amount sufficient, as determined by the Board of Directors
of the Company in good faith, to make scheduled payments of cash interest
on the Notes when due; and
(19) any amendment, modification, restatement, renewal, increase,
supplement, refunding or refinancing of the contracts, instruments or
obligations referred to in clauses (1) though (18) above, provided that
the provisions relating to the encumbrances or restrictions contained in
any such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing, taken as a whole, are
not materially more restrictive to the Company, as determined by the Board
of Directors of the Company in their reasonable and good faith judgment,
than the provisions contained in the contract, instrument or obligation
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding or refinancing.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company 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 liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that (i) the Company or any of its Restricted Subsidiaries
(other than ▇▇▇▇▇▇▇ Bedding and its Restricted Subsidiaries) may incur
Indebtedness (including Acquired Debt) or issue Disqualified Stock, and
preferred stock, if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock or preferred stock is issued
would have been at least 2.0 to 1 or (ii) ▇▇▇▇▇▇▇ Bedding and its Restricted
Subsidiaries may incur indebtedness (including Acquired Debt) or issue
Disqualified Stock or preferred stock, if the Fixed Charge Coverage Ratio for
▇▇▇▇▇▇▇ Bedding most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or preferred
stock is issued would have been at least 2.0 to 1, in each case, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred or the preferred
stock or Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence of
any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any Restricted Subsidiary of
Indebtedness and letters of credit under Credit Facilities, in an
aggregate principal amount at any one time outstanding under this clause
(1) (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) not to exceed $550.0 million, less the aggregate
amount of all Net Proceeds of Asset Sales applied by the Company or any of
its Restricted Subsidiaries since the date of this Indenture to repay term
Indebtedness under a Credit Facility or to repay revolving credit
Indebtedness and effect a corresponding commitment reduction thereunder,
in each case, pursuant to Section 4.10 hereof;
(2) the incurrence by the Company and its Restricted Subsidiaries of
Existing Indebtedness;
57
(3) the incurrence by the Company of Indebtedness represented by the
Initial Notes and the related Exchange Notes;
(4) the incurrence by the Company of the Senior Term Loan;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations (including borrowings
under a Credit Facility) or Acquired Debt, in each case, incurred for the
purpose of financing all or any part of the purchase price or cost of
construction, development, maintenance, upgrade or improvement of
property, plant, equipment or assets (in each case whether through the
direct purchase of assets or through the purchase of Capital Stock of the
Person owning such assets) used in the business of the Company or such
Restricted Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (4), not to
exceed, at any time outstanding, the greater of (x) $10.0 million and (y)
4.0% of Total Tangible Assets;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace
Indebtedness that was permitted by this Indenture to be incurred under
Section 4.09(a) or clauses (2), (3), (4), (5), (6), or (16) of this
Section 4.09(b);
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries (other than a Receivables Subsidiary);
provided, however, that:
(A) if the Company is the obligor on such Indebtedness, such
Indebtedness must be expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Notes; and
(B) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary of the
Company and (ii) any sale or other transfer of any such Indebtedness
to a Person that is not either the Company or a Restricted
Subsidiary of the Company, will be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, that was not permitted by
this clause (7);
(8) shares of preferred stock of a Restricted Subsidiary issued to
the Company or another Restricted Subsidiary; provided that any subsequent
transfer of any Equity Interests 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 Company or any Restricted Subsidiary) shall be deemed, in each case,
to be an issuance of preferred stock;
(9) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the ordinary
course of business or required under Credit Facilities for the purpose of
fixing, hedging or swapping interest rate, commodity price or foreign
currency exchange rate risk (or to reverse or amend any such agreements
previously made for such purposes), and not for speculative purposes, and
that do not increase the Indebtedness of the obligor outstanding at any
time other than as a result of fluctuations in interest rates, commodity
prices or foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
58
(10) the guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary
that was permitted to be incurred by another provision of this Section
4.09;
(11) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of workers' compensation claims, self-insurance
obligations, indemnities, performance bonds, bankers' acceptances, letters
of credit and surety, appeal or similar bonds provided by the Company or
any of its Restricted Subsidiaries in the ordinary course of business and,
in any such case, any reimbursement obligations in connection therewith;
(12) Indebtedness of the Company or any of its Restricted
Subsidiaries to the extent the net proceeds thereof are promptly deposited
to defease or satisfy and discharge all outstanding Notes in full pursuant
to Section 8.04 hereof and Section 10.01 hereof;
(13) contingent liabilities arising out of endorsements of checks
and other negotiable instruments for deposit or collection or overdraft
protection in the ordinary course of business;
(14) the incurrence by a Receivables Subsidiary of Indebtedness in a
Qualified Receivables Transaction; provided that such Indebtedness is
non-recourse to the Company or any of its Restricted Subsidiaries (except
to the extent of customary representations, warranties, covenants and
indemnities entered into in connection with a Qualified Receivables
Transaction);
(15) obligations of the Company and its Restricted Subsidiaries
arising from agreements of the Company 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 of the Company in
accordance with the terms of this Indenture, other than Guarantees by the
Company or any Restricted Subsidiary of the Company of Indebtedness
incurred by any Person acquiring all or any portion of such business,
assets or a Subsidiary of the Company for the purpose of financing such
acquisition; provided, however, that the maximum aggregate liability in
respect of all such obligations shall not exceed the gross proceeds,
including the Fair Market Value of noncash proceeds (the Fair Market Value
of such noncash proceeds being measured at the time it is received and
without giving effect to any subsequent changes in value), actually
received by the Company and its Restricted Subsidiaries in connection with
such disposition; and
(16) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness, the issuance by the Company of
Disqualified Stock or the issuance by a Restricted Subsidiary of preferred
stock in an aggregate principal amount or liquidation preference at any
time outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness, Disqualified
Stock or preferred stock incurred pursuant to this clause (16), not to
exceed $40.0 million.
For purposes of determining compliance with this Section 4.09, 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 (16) above,
or is entitled to be incurred pursuant to Section 4.09(a), the Company will be
permitted to classify such item of Indebtedness on the date of its incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated under
this Indenture will initially be deemed to have been incurred pursuant to clause
(1) of Section 4.09(b). Indebtedness permitted by this Section 4.09 need not be
permitted by reference to one
59
provision permitting such Indebtedness but may be permitted in part by one such
provision and in part by one or more other provisions of this Section 4.09
permitting such Indebtedness.
Notwithstanding anything to the contrary in this covenant, any incurrence
of Indebtedness by the Company and its Restricted Subsidiaries that is not
permitted to be incurred by ▇▇▇▇▇▇▇ Bedding and its Restricted Subsidiaries
pursuant to the indenture governing ▇▇▇▇▇▇▇ Bedding's Existing Notes (or
Permitted Refinancing Indebtedness thereof) shall be incurred either by the
Company or by one of its Restricted Subsidiaries that is not a direct or
indirect parent of ▇▇▇▇▇▇▇ Bedding.
Notwithstanding anything to the contrary in this covenant, the Company
will not incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is contractually subordinated or junior in right of
payment to any other Indebtedness of the Company unless such Indebtedness also
is contractually subordinated or junior in right of payment to the Notes on
substantially identical terms. No Indebtedness will be considered to be
contractually subordinated or junior in right of payment solely by virtue of
being unsecured or secured on a junior priority basis.
The accrual of interest, the accretion or amortization of original issue
discount, the payment of interest and dividends on any Indebtedness in the form
of additional Indebtedness with the same terms, and the payment or accrual of
dividends on Disqualified Stock or preferred stock in the form of additional
shares of the same class of Disqualified Stock or preferred stock will not be
deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock
or preferred stock for purposes of this Section 4.09.
Section 4.10 Asset Sales.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration (including by way of relief from, or by any other
Person assuming sole responsibility for, any liabilities, contingent or
otherwise) 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 Company's Board
of Directors and evidenced by a Board Resolution set forth in an Officers'
Certificate delivered to the Trustee promptly after the consummation of
such Asset Sale; and
(3) at least 75% of the consideration received in the Asset Sale by
the Company or such Restricted Subsidiary is in the form of cash, Cash
Equivalents, Replacement Assets or any combination thereof. For purposes
of this provision, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet, of the Company or
any Restricted Subsidiary (other than liabilities that are by their
terms subordinated to the Notes) that are assumed by the transferee
of any such assets and, in the case of liabilities other than
Non-Recourse Debt, where the Company and all Restricted Subsidiaries
are released pursuant to an agreement that releases the Company or
such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that
are within 180 days converted by the
60
Company or such Restricted Subsidiary into cash (to the extent of
the cash received in that conversion); and
(C) any Designated Noncash Consideration received by the
Company or any of its Restricted Subsidiaries in the Asset Sale
having an aggregate Fair Market Value, taken together with all other
Designated Noncash Consideration received pursuant to this clause
(C) that is at the time outstanding, not to exceed $5.0 million
(with the Fair Market Value of each item of Designated Noncash
Consideration being measured at the time received and without giving
effect to subsequent changes in value).
For purposes of clause (3) above, any liabilities of the Company or any
Restricted Subsidiary of the Company that are not assumed by the transferee of
such assets in respect of which the Company and all Restricted Subsidiaries are
not released from any future liabilities in connection therewith shall not be
considered consideration.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Company (or such Restricted Subsidiary, as the case may be) may apply such
Net Proceeds at its option:
(1) to repay secured Indebtedness of the Company under a Credit
Facility or Indebtedness of any Restricted Subsidiary of the Company and,
if the Indebtedness repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or the
majority of the Voting Stock of, another Permitted Business;
(3) to make a capital expenditure; or
(4) to acquire non-current assets, including investments in
property, that are used or useful in a Permitted Business;
provided that if during such 365-day period the Company or any of its Restricted
Subsidiaries enters into a definitive agreement committing it to apply such Net
Proceeds in accordance with the requirements of clauses (2), (3) or (4) above,
such 365-day period will be extended an additional 180 days solely with respect
to the amount of such Net Proceeds committed pursuant to such agreement. The
Company may apply Net Proceeds received by any of its Restricted Subsidiaries in
any of the foregoing manners and any Restricted Subsidiary of the Company may
apply Net Proceeds received by the Company or another Restricted Subsidiary of
the Company in any of the foregoing manners. Pending the final application of
any Net Proceeds, the Company may temporarily reduce revolving credit borrowings
or otherwise invest the Net Proceeds in any manner that is not prohibited by
this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph will constitute "Excess Proceeds." On the
366th day after an Asset Sale (or in the case of an extension of the 365-day
period as described above, the day after such extension), if the aggregate
amount of Excess Proceeds exceeds $15.0 million, the Company will make an Asset
Sale Offer to all Holders and all holders of any other Indebtedness that is pari
passu with the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or required prepayments or
redemptions of such Indebtedness with the proceeds of sales of assets in
accordance with Section 3.09 hereof to purchase the maximum amount of Notes and
such other pari passu Indebtedness that may be purchased out of the Excess
Proceeds (an "Asset Sale Offer"). The Company will be required to complete the
Asset Sale Offer no earlier than 30 days and no later than 60 days after notice
of the Asset Sale Offer is provided to the Holders, or such later date as may be
required under applicable law. The offer price in any
61
Asset Sale Offer will be equal to 100% of the Accreted Value thereof on the date
of purchase, plus accrued and unpaid interest to the date of purchase (if on or
after December 15, 2009), plus, in each case, Special Interest, if any, to the
date of purchase and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use those Excess
Proceeds for any purpose not otherwise prohibited by this Indenture. If the
Accreted Value or the aggregate principal amount at maturity of Notes, as
applicable, and other pari passu Indebtedness tendered into such Asset Sale
Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes
and such other pari passu Indebtedness to be purchased on a pro rata basis on
the basis of the aggregate principal amount at maturity of tendered Notes and
tendered, prepaid or redeemed pari passu Indebtedness, if any. Upon completion
of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
The Company will comply with the requirements of Section 14(e) of, and
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 Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.09 or 4.10 of this Indenture, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under Section 3.09 or Section 4.10 hereof by
virtue of such conflict.
Section 4.11 Transactions with Affiliates.
(a) The Company 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 of the Company on or after the date of this Indenture (each,
an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company
or such Restricted Subsidiary with an unrelated Person; and
(2) the Company 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 set forth in an
Officers' Certificate certifying that such Affiliate Transaction
complies with clause (1) of this Section 4.11(a) and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the Company in
good faith; and
(B) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $20.0 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of
national standing.
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any consulting or employment agreement or arrangement entered
into by the Company or any of its Restricted Subsidiaries that is either
approved by a majority of the
62
disinterested members of the Board of Directors of the Company or entered
into in the ordinary course of business;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company
solely because the Company owns an Equity Interest in, or controls, such
Person;
(4) payment of reasonable directors fees to directors of the Company
and other reasonable fees, compensation, benefits and indemnities paid or
entered into by the Company or its Restricted Subsidiaries to or with the
officers and directors of the Company and any Restricted Subsidiary of the
Company;
(5) sales, grants, awards or issuances of Equity Interests (other
than Disqualified Stock), including the exercise of options and warrants,
to Affiliates, officers, directors or employees of the Company or any
contribution to the common equity capital of the Company by Affiliates of
the Company;
(6) any tax sharing agreement or arrangement and payments pursuant
thereto (in amounts not otherwise prohibited by this Indenture) among the
Company and its Subsidiaries and any other Person with which the Company
and its Subsidiaries is required to file a consolidated, combined or
unitary tax return or with which the Company and its Restricted
Subsidiaries is or could be part of a consolidated, combined or unitary
group for tax purposes;
(7) Restricted Payments and Permitted Investments that are not
prohibited by Section 4.07 hereof;
(8) transactions effected as part of a Qualified Receivables
Transaction that are not prohibited by Section 4.09 hereof;
(9) transactions with a joint venture engaged in a Permitted
Business; provided that all of the outstanding ownership interests of such
joint venture are owned only by the Company, its Restricted Subsidiaries
and Persons who are not Affiliates of the Company;
(10) the payment of annual management, consulting, monitoring and
advising fees and related expenses to the Equity Sponsor and its
Affiliates pursuant to the Management Agreement;
(11) payments by the Company or any of its Restricted Subsidiaries
to the Equity Sponsor and its Affiliates for any financial advisory,
financing, underwriting or placement services or in respect of other
investment banking activities, including in connection with acquisitions
or divestitures, which payments are approved by the majority of the Board
of Directors of the Company in good faith and are in an amount not to
exceed the greater of (i) $1.0 million or (ii) 1.25% of the aggregate
transaction value (including enterprise value in connection with
acquisitions or divestitures) (or portion thereof) in respect of which
such services are rendered; and
(12) the declaration and payment of dividends or other distributions
on the Issue Date by the Company to holders of its Capital Stock or other
Equity Interests in the Company in an amount not to exceed the net
proceeds received from the sale of the Notes.
Section 4.12 Liens.
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The Company will not create, incur, assume or otherwise cause or suffer to
exist or become effective any Lien of any kind (other than Permitted Liens)
securing Indebtedness upon any of their property or assets, now owned or
hereafter acquired, unless all payments due under this Indenture and the Notes
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligations are no longer secured by a Lien.
Section 4.13 Business Activities.
The Company 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 Company and its Restricted Subsidiaries taken as a
whole.
Section 4.14 Corporate Existence.
Subject to Article 5 and Section 11.05 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect:
(1) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of
the Company and its Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or
the corporate, partnership or other existence of any of its Subsidiaries,
if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the
Notes, or that such preservation is not necessary in connection with any
transaction not prohibited by this Indenture; provided, further, however,
that a determination of the Board of Directors of the Company shall not be
required in the event of a merger or consolidation, or sale of all or
substantially all of the assets, of one or more Restricted Subsidiaries of
the Company with or into or to another Restricted Subsidiary of the
Company organized under the laws of the United States or a state thereof
or the District of Columbia, in accordance with the terms of this
Indenture.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs and the Company does not at such time
exercise its option, if available, to redeem the Notes pursuant to Section 3.07
hereof, the Company will make an offer (a "Change of Control Offer") to each
Holder to repurchase all or any part (equal to $1,000 principal amount at
maturity or an integral multiple of $1,000 principal amount at maturity) of each
Holder's Notes at a purchase price equal to 101% of the Accreted Value thereof
on the date of purchase, plus accrued and unpaid interest thereon to the date of
repurchase (if on or after December 15, 2009) plus, in each case, Special
Interest, if any, on the Notes repurchased, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) (the "Change of
Control Payment"). Within 30 days following any Change of Control, the Company
will mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered will be accepted for payment;
64
(2) the Change of Control Payment and the purchase date, which shall
be no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered or accepted for payment will continue
to accrue interest;
(4) that, unless the Company defaults in the payment of the Change
of Control Payment, all Notes accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest and Special Interest, if
any, after the Change of Control Payment Date;
(5) that Holders electing to have Notes purchased pursuant to the
Change of Control Offer may elect to have Notes purchased in integral
multiples of $1,000 principal amount at maturity only;
(6) that Holders electing to have Notes purchased pursuant to the
Change of Control Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transferred by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(7) that Holders will be entitled to withdraw their election if the
Company, a Depositary, if appointed by the Company, or a Paying Agent, as
the case may be, receives, not later than the close of business on the
second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount at maturity of Notes delivered for
purchase and a statement that such Holder is withdrawing his election to
have the Notes purchased; and
(8) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount at maturity or an integral multiple thereof.
The Company will comply with the requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with the repurchase of the Notes as a result of a Change of Control. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Sections 4.15, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.15 by virtue of such conflict.
(b) On the Change of Control Payment Date, the Company will, to the extent
lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of Notes properly
tendered and not withdrawn; and
65
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount at maturity of Notes or portions of Notes being
purchased by the Company.
The Paying Agent will promptly mail or deliver to each Holder of Notes
properly tendered and not withdrawn the Change of Control Payment for such
Notes, and the Trustee will promptly authenticate and mail or deliver (or cause
to be transferred by book-entry) to each Holder a new Note equal in principal
amount at maturity to any unpurchased portion of the Notes surrendered, if any;
provided that each new Note will be in a principal amount at maturity of $1,000
or an integral multiple thereof. The Company will publicly announce the results
of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Section 4.15 and purchases all Notes properly tendered and not withdrawn under
the Change of Control Offer. A Change of Control Offer may be made in advance of
a Change of Control, conditional upon such Change of Control, if a definitive
agreement is in place for the Change of Control at the time of making of the
Change of Control Offer. Notes repurchased pursuant to a Change of Control Offer
will be retired and cancelled.
Section 4.16 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary properly
designated (after giving effect to any sale of Equity Interests of such
Subsidiary in connection with such designation) will be deemed to be an
Investment made as of the time of the designation and will reduce the amount
available for Restricted Payments under Section 4.07(a) hereof or Permitted
Investments, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. In addition, no such designation may be made unless the proposed
Unrestricted Subsidiary does not own any Capital Stock in any Restricted
Subsidiary that is not simultaneously subject to designation as an Unrestricted
Subsidiary. The Board of Directors of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would
not cause a Default.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly, (i) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (ii) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries, taken as a whole, in one or more related transactions,
to another Person; unless:
(1) either:
(A) the Company is the surviving corporation, partnership or
limited liability company; or
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(B) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition has been made
is either (i) a corporation organized or existing under the laws of
the United States, any state of the United States or the District of
Columbia or (ii) a partnership or limited liability company
organized or existing under the laws of the United States, any state
thereof or the District of Columbia that has at least one Restricted
Subsidiary that is a corporation organized or existing under the
laws of the United Sates, any state thereof or the District of
Columbia, which corporation becomes a co-issuer of the Notes
pursuant to a supplemental indenture duly and validly executed by
the Trustee;
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all of the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement;
(3) immediately after such transaction and any related financing
transactions, no Default or Event of Default exists; and
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition has been made
would, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred
at the beginning of the applicable four-quarter period:
(A) be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a) hereof; or
(B) have a Fixed Charge Coverage Ratio that is greater than
the actual Fixed Charge Coverage Ratio of the Company immediately
prior to such transaction.
Notwithstanding clauses (3) and (4) of this Section 5.01, the Company may
merge or consolidate with a Restricted Subsidiary incorporated solely for the
purpose of organizing the Company in another jurisdiction.
In addition, the Company will not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. This Section 5.01 will not apply to a sale,
assignment, transfer, conveyance or other disposition of assets between or among
the Company and any of its Restricted Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest,
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including Special Interest, if any, on the Notes except in the case of a sale of
all of the Company's assets in a transaction that is subject to, and that
complies with the provisions of, Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) the Company defaults for 30 days in the payment when due of
interest on, or Special Interest with respect to, the Notes;
(2) the Company defaults in the payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on, the
Notes, including in connection with an Asset Sale Offer or a Change of
Control Offer;
(3) the Company or any of its Restricted Subsidiaries fails to
comply with the provisions of Section 5.01 hereof;
(4) the Company or any of its Restricted Subsidiaries fails to
comply for 30 days after written notice referred to in Section 6.02 hereof
(specifying the default and demanding that the same be remedied) with any
obligations under Sections 4.10 and 4.15 hereof (in each case, other than
a failure to purchase the Notes, which is covered by clause (2) of this
Section 6.01) and Sections 4.07 and 4.09 hereof;
(5) the Company or any of its Restricted Subsidiaries fails to
comply with any other agreement in this Indenture or the Notes for 60 days
after written notice referred to in Section 6.02 hereof (specifying the
default and demanding that the same be remedied);
(6) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company, any of its
Significant Subsidiaries or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary (or the payment
of which is guaranteed by the Company, any of its Significant Subsidiaries
or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary), whether such Indebtedness or
Guarantee now exists, or is created after the date of this Indenture, if
that default:
(A) is caused by a failure to pay principal of such
Indebtedness at its final stated maturity within any applicable
grace period provided in such Indebtedness (a "Payment Default"); or
(B) results in the acceleration of such Indebtedness prior to
its stated maturity, and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other
such Indebtedness contemplated by clause (A) or (B) above,
aggregates $20.0 million or more and such default continues for 10
days after receipt of written notice referred to in Section 6.02
hereof (specifying the default and demanding that the same be
remedied);
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(7) failure by the Company, any of its Significant Subsidiaries or
any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary, to pay final judgments for 10
days after the receipt of written notice referred to in Section 6.02
hereof (specifying the default and demanding that the same be remedied)
aggregating in excess of $20.0 million (net of any amounts covered by
insurance or pursuant to which the Company is indemnified or pursuant to
which the Company is indemnified to the extent that the third party under
such agreement honors its obligations thereunder), which judgments are not
paid, discharged or stayed for a period of 60 days after such judgments
have become final and non-appealable and, in the event such judgment is
covered by insurance, an enforcement proceeding has been commenced by any
creditor upon such judgment or decree that is nor promptly stayed;
(8) the Company, any of its Significant Subsidiaries or any group of
Restricted Subsidiaries of the Company that, taken together, would
constitute a 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, or
(E) generally is not paying its debts as they become due; or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, any of its Significant
Subsidiaries or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary in
an involuntary case;
(B) appoints a custodian of the Company, any of its
Significant Subsidiaries or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of the
Company, any of its Significant Subsidiaries or any group of
Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company, any of its
Significant Subsidiaries or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (8) or (9) of
Section 6.01 hereof, with respect to the Company, any of its Significant
Subsidiaries or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes will
become due and payable immediately without further action or notice. If any
other Event of Default
69
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount at maturity of the then outstanding Notes may declare
all the Notes to be due and payable immediately by notice in writing to the
Company specifying the Event of Default.
Upon any such declaration, the Notes shall become due and payable
immediately.
A default under clauses (4), (5), (6) or (7) of Section 6.01(a) hereof
will not constitute an Event of Default until the Trustee notifies the Company
or the Holders of at least 25% in aggregate principal amount at maturity of the
then outstanding Notes notify the Company and the Trustee of the default and the
Company or its Subsidiary, as applicable, does not cure such default within the
time specified in clauses (4), (5), (6) or (7) of Section 6.01 hereof after
receipt of such notice.
The Holders of a majority in aggregate principal amount at maturity of the
then outstanding Notes by written notice to the Trustee may, on behalf of all of
the Holders, waive any existing Default or Event of Default and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal, interest or premium
or Special Interest, if any, that has become due solely because of the
acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Special
Interest, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount at
maturity of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences under this Indenture, except a continuing Default or Event
of Default in the payment of the principal of, premium and Special Interest, if
any, or interest on, the Notes (including in connection with an offer to
purchase); provided, however, that the Holders of a majority in aggregate
principal amount at maturity of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture, but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal aggregate amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders or that may involve the
Trustee in personal liability.
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Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(1) such Holder gives to the Trustee written notice that an Event of
Default is continuing;
(2) Holders of at least 25% in aggregate principal amount at
maturity of the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in aggregate
principal amount at maturity of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Special Interest,
if any, and interest on the Note, on or after the respective due dates expressed
in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Special Interest, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims, and any custodian in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07
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hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money or property pursuant to this Article 6,
it shall pay out the money or property in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium and Special Interest, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes for principal, premium and Special Interest, if
any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by the
Company, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit
by Holders of more than 10% in principal amount at maturity of the then
outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
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(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee will examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or
risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
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(c) The Trustee may act through its attorneys and agents and will 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 will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company will be sufficient if signed by an
Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that might be incurred
by it in compliance with such request or direction.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee (if this Indenture has been qualified under the TIA) or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee will mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium or Special
Interest, if any, or interest on, any Note, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each July 15 beginning with the July 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee will mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also will comply
with TIA Section 313(b)(2). The Trustee will also transmit by mail all reports
as required by TIA Section 313(c).
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(b) A copy of each report at the time of its mailing to the Holders will
be mailed by the Trustee to the Company and filed by the Trustee with the SEC
and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company will promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company will indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence, willful misconduct or bad faith. The Trustee will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company will not relieve the Company of its obligations under this
Section 7.07. The Company will defend the claim and the Trustee will cooperate
in the defense. The Trustee may have separate counsel and the Company will pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent will not be unreasonably
withheld.
(c) The obligations of the Company under this Section 7.07 will survive
the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this Section 7.07, the
Trustee will have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien will survive the satisfaction and
discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor
Trustee will become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time upon 30 days prior
written notice to the Company and be discharged from the trust hereby created by
so notifying the Company. The Holders of a majority in aggregate principal
amount at maturity of the then outstanding Notes may remove the
75
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount at maturity of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
(d) If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in aggregate principal amount at maturity of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by ▇▇▇▇▇▇, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
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This Indenture will always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company will, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company will be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which will thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in clauses (1) and (2) below, and to have satisfied all of its other
obligations under the Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive
until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments
in respect of the principal of, or interest or premium and Special
Interest, if any, on, such Notes when such payments are due from the trust
referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith; and
(4) this Article 8.
If the Company exercises its Legal Defeasance option, payment of the Notes
may not be accelerated because of an Event of Default with respect to the Notes.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
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Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company will, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from each of
their obligations contained in:
(1) Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16,
4.17, and 4.18 hereof;
(2) the operation of the default provisions specified in clauses
(4), (5), (6), (7) and, with respect to Significant Subsidiaries or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary only, clauses (8) and (9) of Section 6.01 hereof;
and
(3) clause (4) of Section 5.01 hereof
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 hereof are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes will thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but will
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and will have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document, and such omission to
comply will not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Notes will be unaffected thereby.
The Company may exercise its Legal Defeasance option notwithstanding its
prior exercise of its Covenant Defeasance option. If the Company exercises its
Covenant Defeasance option, payment of the Notes may not be accelerated because
of an Event of Default specified in clause (4), (5), (6), (7), (8) or (9) (with
respect to Significant Subsidiaries or a group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary only) under Section
6.01 hereof or because of the failure of the Company to comply with clause (4)
of Section 5.01 hereof.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under
either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and
Special Interest, if any, and interest on, the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date, as
the case may be, and the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the
Company must deliver to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that:
(A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling; or
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(B) since the date of this Indenture, there has been a change
in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the
Company must deliver to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee to the effect that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
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 Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound and is not prohibited by Article 10 hereof;
(6) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors
of the Company or others; and
(7) the Company 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 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Special Interest, if
any, and interest, but such money and non-callable Government Securities need
not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
79
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
The Trustee shall promptly, and in any event, no later than three Business
Days, pay to the Company after request therefor, any excess money or
non-callable Government Securities held with respect to the Notes at such time
in excess of amounts required to pay any of the Company's Obligations then owing
with respect to the Notes.
Any money or non-callable Government Securities deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment of
the principal of, premium or Special Interest, if any, or interest on, any Note
and remaining unclaimed for two years after such principal, premium or Special
Interest, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) will be discharged from
such trust; and the Holder of such Note will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, will thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which will not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
will be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium or Special Interest, if any, or interest on,
any Note following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or non-callable Government Securities held by the Trustee or
Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder:
(1) to cure any ambiguity, defect, omission, mistake or
inconsistency;
80
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(3) to provide for the assumption of the Company's obligations to
the Holders by a successor to the Company pursuant to Article 5 hereof;
(4) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect in any material
respect the legal rights under this Indenture of any Holder;
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to provide for the issuance of Additional Notes in accordance
with this Indenture;
(7) to secure the Notes;
(8) to comply with the rules of any applicable securities
depositary;
(9) to conform the text of this Indenture or the Notes to any
provision of the "Description of Notes" section of the Offering Circular
relating to the initial offering of the Notes, to the extent that such
provision in that "Description of Notes" was intended to be a verbatim
recitation of a provision of this Indenture or the Notes; and
(10) to provide for a successor trustee in accordance with the terms
of this Indenture or to otherwise comply with any requirement of this
Indenture.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee will join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee will not be obligated to enter into such
amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture (including, without limitation, Sections
3.09, 4.10 and 4.15 hereof) and the Notes with the consent of the Holders of at
least a majority in aggregate principal amount at maturity of the Notes
(including, without limitation, Additional Notes, if any) then outstanding
voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium or Special Interest, if any, or interest on, the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in aggregate principal
amount at maturity of the then outstanding Notes voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes); provided, however, that any amendment to, or
waiver of, the provisions of Article 10 hereof that adversely affects the rights
of the Holders of the Notes will
81
require the consent of the Holders of at least 75% in aggregate principal amount
at maturity of Notes then outstanding.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee will join with the
Company in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but will not be obligated to, enter into such
amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company will mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, will not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of at least a
majority in aggregate principal amount at maturity of the Notes then outstanding
voting as a single class may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Notes. However, without the
consent of each Holder affected, an amendment, supplement or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(1) reduce the principal amount at maturity of Notes whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal amount at maturity of or change the fixed
maturity of any Note or alter or waive any of the provisions with respect
to the redemption of the Notes other than with respect to Sections 3.09,
4.10 and 4.15 hereof;
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal
of, or premium or Special Interest, if any, or interest on, the Notes
(except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount at maturity of the then
outstanding Notes and a waiver of the payment default that resulted from
such acceleration);
(5) make any Note payable in money other than that stated in the
Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of, or interest or premium or Special Interest, if any, on, the
Notes;
(7) waive a redemption payment with respect to any Note (other than
a payment required by Sections 3.09, 4.10 or 4.15 hereof);
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(8) impair the right of any Holder to receive payment of principal
of, and interest or any premium or Special Interest, if any, on, such
Holder's Notes on or after the due dates therefor or to institute suit for
the enforcement of any payment on or with respect to such ▇▇▇▇▇▇'s Notes;
(9) change the method of calculation of Accreted Value; or
(10) make any change in the preceding amendment and waiver
provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be set
forth in a amended or supplemental indenture that complies with the TIA as then
in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting ▇▇▇▇▇▇'s Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company, in
exchange for all Notes, may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
will be entitled to receive and (subject to Section 7.01 hereof) will be fully
protected in relying upon, in addition to the documents required by Section
11.04 hereof, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect
as to all Notes issued hereunder, when:
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(1) either:
(a) all Notes that have been authenticated, except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company, have been delivered to the Trustee for
cancellation; or
(b) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable, or will become due and payable
within one year, by reason of providing for the mailing of a notice of
redemption or otherwise and the Company has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities or a combination thereof, in amounts as will be sufficient,
without consideration of any reinvestment of interest, to pay and
discharge the entire Indebtedness on the Notes not delivered to the
Trustee for cancellation for principal, premium and Special Interest, if
any, and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on
the date of such deposit or will occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute a
default under, any other instrument to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(3) the Company has paid or caused to be paid all other sums payable
by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case may
be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money
has been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the provisions of Sections 12.02 and 8.06 will survive. In
addition, nothing in this Section 10.01 will be deemed to discharge those
provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 10.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money and
non-callable Government Securities deposited with the Trustee pursuant to
Section 10.01 hereof shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee, but such money and non-callable Government
Securities need not be segregated from other funds except to the extent required
by law.
84
Section 10.03 Reinstatement
If the Trustee or Paying Agent is unable to apply any money or
non-callable Government Securities in accordance with Section 10.01 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 10.01 hereof until such time as the Trustee or Paying Agent is able
to apply all such money in accordance with Section 10.01 hereof; provided that
if the Company has made any payment of principal of, premium, if any, or
interest on, any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or non-callable Government Securities held
by the Trustee or Paying Agent.
Section 10.04 Repayment to Company
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium or Special
Interest, if any, or interest on, any Note and remaining unclaimed for two years
after such principal, premium or Special Interest, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) will be discharged from such trust; and the Holder of such
Note will thereafter be permitted to look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, will
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties will control.
Section 11.02 Notices.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
85
With a copy to:
▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Trustee:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
The Company or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it will
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it will mail a
copy to the Trustee and each Agent at the same time.
Section 11.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
Section 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
86
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) must comply with the provisions of TIA
Section 314(e) and must include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, will have any liability for any obligations
of the Company under the Notes, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. The waiver may
not be effective to waive liabilities under the federal securities laws.
Section 11.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
87
Section 11.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors.
Section 11.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 11.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy will be an original, but all of them together represent the same agreement.
Section 11.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and will in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
88
SIGNATURES
Dated as of December 15, 2004
▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
SIGNATURES
Dated as of December 15, 2004
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
[Face of Note]
--------------------------------------------------------------------------------
CUSIP/CINS ____________
10% Senior Discount Notes due 2014
No.___
$__________________________,
principal amount at maturity
▇▇▇▇▇▇▇ COMPANY
promises to pay to CEDE & CO. or registered assigns,
the principal sum of ___________________________________________________ DOLLARS
on December 15, 2014.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: _______________
▇▇▇▇▇▇▇ COMPANY
By:________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Trustee
By:_________________________________
Authorized Signatory
--------------------------------------------------------------------------------
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[Back of Note]
10% Senior Discount Notes due 2014
[Insert the OID Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Global Note 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 have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. Prior to December 15, 2009 (the "Full Accretion Date")
interest will accrue on the Notes in the form of an increase in the
accreted value of the Notes. Thereafter ▇▇▇▇▇▇▇ Company, a Delaware
corporation (the "Company"), promises to pay interest on the principal
amount at maturity of this Note at 10.0% per annum from December 15, 2009
until maturity and shall pay the Special Interest, if any, payable
pursuant to Section 2 of the Registration Rights Agreement referred to
below. The Company will pay interest and Special Interest, if any,
semi-annually in arrears on June 15 and December 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). No cash interest will accrue on the
Notes prior to December 15, 2009, although for U.S. federal income tax
purposes a significant amount of original issue discount, taxable as
ordinary income, will be recognized by a Holder as such discount accretes.
The accreted value of each note will increase on a daily basis from the
date of issuance until December 15, 2009 at a rate of 10% per annum,
reflecting the accrual of non-cash interest, such that the accreted value
will equal the principal amount at maturity on December 15, 2009. Cash
interest will accrue on the notes at the rate per annum of 10% from
December 15, 2009, or from the most recent date to which interest has been
paid, semi-annually on June 15 and December 15 of each year, commencing
June 15, 2010, to the Holders of record at the close of business on June 1
and December 1 immediately preceding the interest payment date. The
Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess
of the rate then in effect; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any, (without regard to
any applicable grace periods) from time to time on demand at the same rate
to the extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons
who are registered Holders at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium and
Special Interest, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of interest and
Special Interest, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Special Interest,
if any, on all Global Notes and all other Notes held by any Holder of at
least $5.0 million in principal amount at maturity of Notes who has
provided wire transfer instructions to the Company or the Paying Agent.
Such payment will be in such
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coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, ▇▇▇▇▇ Fargo 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 of its Subsidiaries may
act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated
as of December 15, 2004 (the "Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the TIA (15 U.S. Code
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern
and be controlling. The Notes are unsecured obligations of the Company The
Company shall be entitled to issue Additional Notes pursuant to Section
2.13 of the Indenture.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company will not have the option to redeem the Notes prior to December 15, 2009.
The Company is not prohibited, however, from acquiring the Notes by means other
than a redemption, whether pursuant to an issuer tender offer, open market
transactions or otherwise, so long as such acquisition does not otherwise
violate the terms of the Indenture. On or after December 15, 2009, the Company
will have the option to redeem the Notes, 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 at maturity or Accreted Value) set forth below
plus accrued and unpaid interest and Special Interest, if any, thereon 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), if redeemed during the twelve-month period beginning on December 15 of
the years indicated below:
Year Percentage
---- ----------
2009......................................................... 105.000%
2010......................................................... 103.333%
2011......................................................... 101.666%
2012 and thereafter.......................................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph
5, at any time prior to December 15, 2007, the Company may redeem up to 40% of
the principal amount at maturity of Notes on any one or more occasions with the
Net Cash Proceeds from one or more Equity Offerings by the Company or any direct
or indirect parent of the Company (so long as such Net Cash Proceeds are
contributed by such parent to the Company as common equity) at a redemption
price equal to 110.0% of the Accreted Value thereof, plus accrued and unpaid
interest and Special Interest, if any, thereon 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); provided that at
least 60% in aggregate principal amount at maturity of the Notes issued under
the Indenture remains outstanding immediately after the occurrence of such
redemption (excluding the Notes held by the Company and its Subsidiaries) and
that such redemption occurs within 90 days of the date of the closing of such
Designated Equity Offering.
(6) MANDATORY REDEMPTION.
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Except as set forth below, the Company will not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
Subject to the provisions of Section 3.09 hereof, if any Notes are to be
outstanding on June 15, 2010, at least 30 days but not more than 60 days before
June 15, 2010, the Company will mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder at its registered address, providing
notice that it will redeem for cash a principal amount at maturity of each Note
then outstanding equal to the Mandatory Principal Redemption Amount, plus a
premium equal to 5.0% of the Mandatory Principal Redemption Amount. Such notice
will include the other information required by Section 3.03. On June 15, 2010,
the Company will redeem for cash a portion of each Note then outstanding equal
to the Mandatory Principal Redemption Amount, plus a premium equal to 5.0% of
the Mandatory Principal Redemption Amount. No partial redemption or repurchase
of the Notes pursuant to any other provision of this Indenture will alter the
obligation of the Company to make this redemption with respect to any Notes then
outstanding. "Mandatory Principal Redemption Amount" means as of the last day of
the first accrual period (as defined in Internal Revenue Code section
1272(a)(5)) ending after December 15, 2009, the excess, if any, of (a) the
aggregate amount of accrued and unpaid interest and all accrued and unpaid
original issue discount (as defined in Internal Revenue Code section 1273(a)(1))
on the note, over (b) an amount equal to the product of (i) the issue price (as
defined in Internal Revenue Code sections 1273(b) and 1274(a)) of the note
multiplied by (ii) the yield to maturity of the note. For the avoidance of
doubt, the Mandatory Principal Redemption Amount, but not the premium payable
therewith, shall reduce the outstanding principal amount of the Notes. The
Company will calculate the Mandatory Principal Redemption Amount and will
certify its calculations to the Trustee.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control and the Company does not
at such time exercise its option, if available, to redeem the Notes
pursuant to Section 3.07 of the Indenture, the Company will be required to
make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 principal amount at maturity or an integral multiple
thereof) of each Holder's Notes at a purchase price equal to 101% of the
Accreted Value thereof, plus accrued and unpaid interest and Special
Interest thereon, if any, to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest due on
the relevant interest payment date) (the "Change of Control Payment").
Within 30 days following any Change of Control, the Company will mail a
notice to each Holder setting forth the procedures governing the Change of
Control Offer as required by the Indenture. Holders that are the subject
of an offer to purchase will receive a Change of Control Offer from the
Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" attached to the Notes.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales, on the 366th day after an Asset Sale (or, in the case of an
extension of the 365-day period as provided in Section 4.10 of the
Indenture, the day after such extension), if the aggregate amount of
Excess Proceeds exceeds $15.0 million, the Company will make an Asset Sale
Offer to all Holders and all holders of any other Indebtedness that is
pari passu with the Notes containing provisions similar to those set forth
in the Indenture with respect to offers to purchase or require prepayments
or redemptions of such Indebtedness with the proceeds of sales of assets
pursuant to Section 3.09 of the Indenture to purchase the maximum
principal amount at maturity of Notes and other pari passu Indebtedness
that may be purchased out of the Excess Proceeds at an offer price in cash
in an amount equal to 100% of the Accreted Value thereof on the date of
purchase (if prior to December 15, 2009) or 100% of the aggregate
principal amount at maturity thereof plus accrued and unpaid interest to
the date of purchase (if on or after December 15, 2009), plus, in
A-4
each case, Special Interest thereon, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and other pari
passu Indebtedness tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company (or such Subsidiary) may use such
deficiency for any purpose not otherwise prohibited by the Indenture. If
the Accreted Value or the aggregate principal amount at maturity of Notes
and other pari passu Indebtedness surrendered by holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes and
other pari passu Indebtedness to be purchased on a pro rata basis. Holders
that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address, except
that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction or discharge of the Indenture. Notes in
denominations larger than $1,000 principal amount of maturity may be
redeemed in part but only in whole multiples of $1,000 principal amount of
maturity, unless all of the Notes held by a Holder are to be redeemed. On
and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 principal amount of
maturity and integral multiples of $1,000 principal amount of maturity.
The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register
the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount at
maturity of the then outstanding Notes and Additional Notes, if any,
voting as a single class, and any existing Default or Event of Default
compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount at
maturity of the then outstanding Notes and Additional Notes, if any,
voting as a single class. Without the consent of any Holder of a Note, the
Indenture the Notes may be amended or supplemented to cure any ambiguity,
defect, omission, mistake or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company's obligations to Holders of the Notes in case of
a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect in any material respect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under
the TIA, to comply with the rules of any applicable securities depositary,
to provide for a successor trustee in accordance with
A-5
the terms of the Indenture and to conform the text of the Indenture or the
Notes to any provision of the "Description of Notes" section of the
Company's Offering Circular to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a
provision of the Indenture or the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest or Special Interest on the
Notes; (ii) default in payment when due of principal of or premium, if
any, on the Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or
otherwise, (iii) failure by the Company or any of its Restricted
Subsidiaries to comply with Section 5.01 of the Indenture; (iv) failure by
the Company or any of its Restricted Subsidiaries for 30 days after
written notice to comply with Sections 4.10 and 4.15 of the Indenture (in
each case, other than a failure to purchase the Notes, which is covered by
clause (ii) above) and Sections 4.07 and 4.09 of the Indenture; (v)
failure by the Company or any of its Restricted Subsidiaries for 60 days
after written notice to comply with certain other agreements in the
Indenture or the Notes; (vi) default under certain other agreements
relating to Indebtedness of the Company, any of its Significant
Subsidiaries or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary, where such default is caused by
a failure to pay principal of such Indebtedness at its final stated
maturity within any applicable grace period or which default results in
the acceleration of such Indebtedness prior to its express maturity and
such default continues for 10 days after written notice; (vii) certain
final judgments for the payment of money that remain undischarged for a
period of 60 days; and (viii) certain events of bankruptcy or insolvency
with respect to the Company or any of its Significant Subsidiaries or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary. If any Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount at maturity
of the then outstanding Notes may declare all the Notes to be due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to
the Company or any of its Significant Subsidiaries or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice. A Default under clauses (iv), (v), (vi)
or (vii) will not constitute an Event of Default until the Trustee
notifies the Company or the Holders of at least 25% in aggregate principal
amount at maturity of the outstanding Notes notify the Company and the
Trustee of the Default and the Company or its Subsidiary, as applicable,
does not cure such default within the time specified in clauses (iv), (v),
(vi) or (vii) after receipt of such notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount at maturity
of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount at maturity of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Notes. The
Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its
A-6
Affiliates, and may otherwise deal with the Company or its Affiliates, as
if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, will not have any
liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes will have all the rights set forth in the Registration
Rights Agreement dated as of December 15, 2004, among the Company and the
other parties named on the signature pages thereof or, in the case of
Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes will have the rights set forth in one or more
registration rights agreements, if any, among the Company and the other
parties thereto, relating to rights given by the Company to the purchasers
of any Additional Notes (collectively, the "Registration Rights
Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed
thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:________________________________________
(Sign exactly as your name appears on theface of this
Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_______________, principal amount at maturity
Date: _______________
Your Signature:________________________________________
(Sign exactly as your name appears on theface of
this Note)
Tax Identification No.:________________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount at
Maturity
Amount of decrease in Amount of increase in of this Global Note
Principal Amount at Principal Amount at following such Signature of authorized
Maturity of Maturity of decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- --------------------- --------------------- ------------------ -----------------------
* This schedule should be included only if the Note is issued in global form.
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10% Senior Discount Notes due 2014
Reference is hereby made to the Indenture, dated as of December 15, 2004
(the "Indenture"), among ▇▇▇▇▇▇▇ Company, a Delaware corporation, as issuer (the
"Company") and ▇▇▇▇▇ Fargo Bank, National Association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount at maturity of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO
REGULATION S. 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(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a
B-1
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144, Rule
903 or Rule 904, and the Transferor hereby further certifies that it has
not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global
Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by
the Transferee in the form of Exhibit D to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Restricted
Definitive Notes and in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or
B-2
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________________
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10 % Senior Discount Notes due 2014
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of December 15, 2004
(the "Indenture"), among ▇▇▇▇▇▇▇ Company, a Delaware corporation, as issuer (the
"Company") and ▇▇▇▇▇ Fargo Bank, National Association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount at maturity of $____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in
C-1
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
[ ]144A Global Note, [ ]Regulation S Global Note, [ ]IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ______________________
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10 % Senior Discount Notes due 2014
Reference is hereby made to the Indenture, dated as of December 15, 2004
(the "Indenture"), among ▇▇▇▇▇▇▇ Company, a Delaware corporation, as issuer (the
"Company") and ▇▇▇▇▇ Fargo Bank, National Association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount at maturity of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_____________________________________
[Insert Name of Transferor]
By:__________________________________
Name:
Title:
Dated: _______________________
D-2