Exhibit 4.5
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TRANSDIGM HOLDING COMPANY
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
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INDENTURE
Dated as of December 3, 1998
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$20,000,000
12% Pay-in-Kind Notes due 2009
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
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310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(i)(b). . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(ii)(c) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(iii)(c). . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(iv)(c) . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(v)(c). . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(vi)(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.03; 11.02
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(vii)(e). . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . NA
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.05, 11.02
(A)(c). . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence). . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(B)(c). . . . . . . . . . . . . . . . . . . . . . . . . 2.12
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a). . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
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N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. OTHER DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.03. TRUST INDENTURE ACT DEFINITIONS. . . . . . . . . . . . . . . 22
SECTION 1.04. RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . . . 22
ARTICLE 2 THE NOTES
SECTION 2.01. FORM AND DATING. . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.02. EXECUTION AND AUTHENTICATION.. . . . . . . . . . . . . . . . 23
SECTION 2.03. REGISTRAR AND PAYING AGENT.. . . . . . . . . . . . . . . . . 24
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . . . . . . 24
SECTION 2.05. HOLDER LISTS.. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.06. TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . . . 25
SECTION 2.07. REPLACEMENT NOTES. . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.08. OUTSTANDING NOTES. . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. TREASURY NOTES.. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.10. TEMPORARY NOTES. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.11. CANCELLATION.. . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. DEFAULTED INTEREST.. . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.13. CUSIP NUMBERS. . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 3 REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.. . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. . . . . . . . . . . . . . 31
SECTION 3.03. NOTICE OF REDEMPTION.. . . . . . . . . . . . . . . . . . . . 31
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.. . . . . . . . . . . . . . . 32
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . . 32
SECTION 3.06. NOTES REDEEMED IN PART.. . . . . . . . . . . . . . . . . . . 32
SECTION 3.07. OPTIONAL REDEMPTION. . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.08. MANDATORY REDEMPTION.. . . . . . . . . . . . . . . . . . . . 33
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF NET PROCEEDS OFFER
AMOUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 4 COVENANTS
SECTION 4.01. PAYMENT OF NOTES.. . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . 36
SECTION 4.03. REPORTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.04. COMPLIANCE CERTIFICATE.. . . . . . . . . . . . . . . . . . . 37
SECTION 4.05. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.. . . . . . . . . . . . . . . 37
SECTION 4.07. RESTRICTED PAYMENTS. . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.. . . . . . . . . . . . . . . . . . 40
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SECTION 4.09. INCURRENCE OF INDEBTEDNESS.. . . . . . . . . . . . . . . . . 41
SECTION 4.10. ASSET SALES. . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.. . . . . . . . . . . . . . . . 43
SECTION 4.12. LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.13. CONDUCT OF BUSINESS. . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.14. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.. . . . . . . . . 45
SECTION 4.16. ADDITIONAL INDEBTEDNESS. . . . . . . . . . . . . . . . . . . 46
SECTION 4.17. NO SENIOR SUBORDINATED DEBT. . . . . . . . . . . . . . . . . 46
SECTION 4.18. RESTRICTION ON PREFERRED STOCK OF CERTAIN SUBSIDIARIES.. . . 47
SECTION 4.19. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF OPCO.. 47
ARTICLE 5 SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.. . . . . . . . . . 47
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . . . 48
ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.02. ACCELERATION.. . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.03. OTHER REMEDIES.. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.04. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . . . 50
SECTION 6.05. CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.06. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT. . . . . . . . 51
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.. . . . . . . . . . . . . . . . . 52
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.. . . . . . . . . . . . . . 52
SECTION 6.10. PRIORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.11. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . . . 53
ARTICLE 7 TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 7.02. RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.. . . . . . . . . . . . . . . . 55
SECTION 7.04. TRUSTEE'S DISCLAIMER.. . . . . . . . . . . . . . . . . . . . 55
SECTION 7.05. NOTICE OF DEFAULTS.. . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.. . . . . . . . . 55
SECTION 7.07. COMPENSATION AND INDEMNITY.. . . . . . . . . . . . . . . . . 56
SECTION 7.08. REPLACEMENT OF TRUSTEE.. . . . . . . . . . . . . . . . . . . 56
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . . . . . . . . . . 57
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . . . 57
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . . . 58
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.. . 58
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.. . . . . . . . . . . . . . . 58
SECTION 8.03. COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . 59
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SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.. . . . . . . . . 59
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.. . . . . . . . . . . . . . 61
SECTION 8.06. SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . 61
SECTION 8.07. REPAYMENT TO COMPANY.. . . . . . . . . . . . . . . . . . . . 61
SECTION 8.08. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.09. SURVIVAL.. . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES. . . . . . . . . . . . . 62
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.. . . . . . . . . . . . . . 63
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . . . 64
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . . . 65
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.. . . . . . . . . . . . . . 65
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . . . 65
ARTICLE 10 SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. . . . . . . . . . . . . . . . . . 65
SECTION 10.02. INTENTIONALLY OMITTED.. . . . . . . . . . . . . . . . . . . 66
SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY. . . . . . . . . . . . 66
SECTION 10.04. DEFAULT ON DESIGNATED SENIOR DEBT.. . . . . . . . . . . . . 67
SECTION 10.05. ACCELERATION OF NOTES.. . . . . . . . . . . . . . . . . . . 68
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.. . . . . . . . . . . . 68
SECTION 10.07. NOTICE BY COMPANY.. . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.08. SUBROGATION.. . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.09. RELATIVE RIGHTS.. . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. . . . . . . . 70
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. . . . . . . . . . 70
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT. . . . . . . . . . . . . 70
SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.. . . . . . . . . . . 71
SECTION 10.14. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 11 MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . . . 71
SECTION 11.02. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS
OF NOTES. . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . . . 73
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.. . . . . . . 73
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.. . . . . . . . . . . . . . . . 73
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.08. GOVERNING LAW.. . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.. . . . . . . 74
SECTION 11.10. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.11. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.12. COUNTERPART ORIGINALS.. . . . . . . . . . . . . . . . . . . 74
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC. . . . . . . . . . . . . . 74
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EXHIBITS
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Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
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INDENTURE dated as of December 3, 1998 among TransDigm Holding
Company, a Delaware corporation (the "COMPANY"), and State Street Bank and
Trust Company, 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 of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or
into the Company or any of its Subsidiaries or that is assumed in connection
with the acquisition of assets from such Person and in each case not incurred
by such Person in connection with, or in anticipation or contemplation of,
such Person becoming a Restricted Subsidiary of the Company or such
acquisition, merger or consolidation.
"ADDITIONAL INTEREST" means all additional interest then owing
pursuant to Section 4 of the Registration Rights Agreement.
"ADDITIONAL NOTES" means Notes issued as interest, substantially in
the form of Exhibit A hereto.
"AFFILIATE" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative of the foregoing. Notwithstanding the foregoing, no
Person (other than the Company or any Subsidiary of the Company) in whom a
Securitization Entity makes an Investment in connection with a Qualified
Securitization Transaction shall be deemed to be an Affiliate of the Company
or any of its Subsidiaries solely by reason of such investment.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"ALL OR SUBSTANTIALLY ALL" shall have the meaning given such phrase
in the Revised Model Business Corporation Act.
"ASSET ACQUISITION" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company, or shall be
merged with or into the Company or any Restricted Subsidiary of the Company,
or (b) the acquisition by the Company or any Restricted Subsidiary of the
Company of the assets of any Person (other than a Restricted Subsidiary of
the Company) other than in the ordinary course of business.
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"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and
Leaseback Transaction) to any Person other than the Company or a Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted
Subsidiary of the Company or (b) any other property or assets of the Company
or any Restricted Subsidiary of the Company other than in the ordinary course
of business; PROVIDED, HOWEVER, that Asset Sales or other dispositions shall
not include (i) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate consideration of
less than $1.2 million, (ii) the sale, lease, conveyance, disposition or
other transfer of all or substantially all of the assets of the Company as
permitted by Section 5.01 hereof or any disposition that constitutes a Change
of Control, (iii) the sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof, (iv) disposals or
replacements of obsolete equipment in the ordinary course of business, (v)
the sale, lease, conveyance, disposition or other transfer by the Company or
any Restricted Subsidiary of assets or property to one or more Restricted
Subsidiaries in connection with Investments permitted by Section 4.07 hereof
or pursuant to any Permitted Investment, and (vi) sales of accounts
receivable, equipment and related assets (including contract rights) of the
type specified in the definition of "Qualified Securitization Transaction" to
a Securitization Entity for the fair market value thereof, including cash in
an amount at least equal to 75% of the fair market value thereof as
determined in accordance with GAAP. For the purposes of clause (vi) of this
paragraph, Purchase Money Notes shall be deemed to be cash.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"BOARD OF DIRECTORS" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other
equivalents (however designated and whether or not voting) of corporate
stock, including each class of Common Stock and Preferred Stock, of such
Person and (ii) with respect to any Person that is not a corporation, any and
all partnership or other equity interests of such Person.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligations of such Person under a lease that are required to be classified
and accounted for as capital lease obligations under GAAP and, for purposes
of this definition, the amount of such obligations at any date shall be the
capitalized amount of such obligations at such date, determined in accordance
with GAAP.
"CASH EQUIVALENTS" means: (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued
by any agency thereof and backed by
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the full faith and credit of the United States, in each case maturing within
one year from the date of acquisition thereof; (ii) marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from
either S&P or ▇▇▇▇▇'▇; (iii) commercial paper maturing no more than one year
from the date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws
of the United States of America or any state thereof or the District of
Columbia or any U.S. branch of a foreign bank having at the date of
acquisition thereof combined capital and surplus of not less than $250.0
million; (v) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause (iv) above;
and (vi) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all
of the assets of the Company to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group"), other than to the
Permitted Holders or their Related Parties or any Permitted Group; (ii) the
approval by the holders of Capital Stock of the Company of any plan or
proposal for the liquidation or dissolution of the Company (whether or not
otherwise in compliance with the provisions of this Indenture); (iii) any
Person or Group (other than the Permitted Holders or their Related Parties or
any Permitted Group) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing more than 40% of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company at a time when the Permitted Holders and their
Related Parties in the aggregate own a lesser percentage of the aggregate
ordinary voting power represented by such issued and outstanding Capital
Stock; or (iv) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors.
"COMMON STOCK" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and
whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"COMPANY" means TransDigm Holding Company, and any and all
successors thereto.
"CONSOLIDATED EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of such Person's (i) Consolidated Net
Income; and (ii) to the extent Consolidated Net Income has been reduced
thereby, (A) all income taxes and foreign withholding taxes of such Person
and its Restricted Subsidiaries paid or accrued in accordance with GAAP for
such period; (B) Consolidated Interest Expense; (C) Consolidated Non-cash
Charges less any non-cash items increasing Consolidated Net Income for such
period (other than normal accruals in the ordinary course of business), all
as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP; and (D) any cash charges resulting from
the Transactions that are incurred prior to the six month anniversary of the
Issue Date.
-3-
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four-Quarter Period") ending prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio for which financial statements are available (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the
Four-Quarter Period. In addition to and without limitation of the foregoing,
for purposes of this definition, "Consolidated EBITDA" and "Consolidated
Fixed Charges" shall be calculated after giving effect on a pro forma basis
for the period of such calculation to (i) the incurrence or repayment of any
Indebtedness or the issuance of any Designated Preferred Stock of such Person
or any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any incurrence
or repayment of other Indebtedness or the issuance or redemption of other
Preferred Stock (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business
for working capital purposes pursuant to revolving credit facilities,
occurring during the Four-Quarter Period or at any time subsequent to the
last day of the Four-Quarter Period and on or prior to the Transaction Date,
as if such incurrence or repayment or issuance or redemption, as the case may
be (and the application of the proceeds thereof), had occurred on the first
day of the Four-Quarter Period; and (ii) any Asset Sales or other
dispositions or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of
such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Indebtedness and
also including any Consolidated EBITDA (including any pro forma expense and
cost reductions and other operating improvements that have occurred or are
reasonably expected to occur, all as determined in accordance with Regulation
S-X promulgated under the Securities Act) attributable to the assets which
are the subject of the Asset Acquisition or Asset Sale or other disposition
and without regard to clause (iv) of the definition of Consolidated Net
Income) occurring during the Four-Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction
Date, as if such Asset Sale or other disposition or Asset Acquisition
(including the incurrence or assumption of any such Acquired Indebtedness)
occurred on the first day of the Four-Quarter Period. If such Person or any
of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness
of a third Person, the preceding sentence shall give effect to the incurrence
of such guaranteed Indebtedness as if such Person or any Restricted
Subsidiary of such Person had directly incurred or otherwise assumed such
other Indebtedness that was so guaranteed.
Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio": (i) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and (ii) notwithstanding
clause (i) of this paragraph, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements
relating to Interest Swap Obligations, shall be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such agreements.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Interest
Expense; plus (ii) the product of (x) the amount of all cash dividend
payments on any series of Preferred Stock of such Person times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local income
tax rate of such Person, expressed as a decimal; plus (iii) the
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product of (x) the amount of all dividend payments on any series of Permitted
Subsidiary Preferred Stock times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated federal, state and local income tax rate of such Person,
expressed as a decimal; PROVIDED that with respect to any series of Preferred
Stock that was not paid cash dividends during such period but that is
eligible to be paid cash dividends during any period prior to the maturity
date of the Notes, cash dividends shall be deemed to have been paid with
respect to such series of Preferred Stock during such period for purposes of
this clause (iii).
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person
for any period, the sum of, without duplication, (i) the aggregate of all
cash and non-cash interest expense with respect to all outstanding
Indebtedness of such Person and its Restricted Subsidiaries, including the
net costs associated with Interest Swap Obligations, for such period
determined on a consolidated basis in conformity with GAAP, but excluding
amortization or write-off of debt issuance costs, (ii) the consolidated
interest expense of such Person and its Restricted Subsidiaries that was
capitalized during such period; and (iii) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the aggregate net
income (or loss) of the Company and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP and
without any deduction in respect of Preferred Stock dividends; PROVIDED that
there shall be excluded therefrom, (i) gains and losses from Asset Sales
(without regard to the $1.2 million limitation set forth in the definition
thereof) and the related tax effects according to GAAP, (ii) gains and losses
due solely to fluctuations in currency values and the related tax effects
according to GAAP, (iii) all extraordinary, unusual or nonrecurring charges,
gains and losses (including, without limitation, all restructuring costs and
any expense or charge related to the repurchase of Capital Stock or warrants
or options to purchase Capital Stock), and the related tax effects according
to GAAP, (iv) the net income (or loss) of any Person acquired in a pooling of
interests transaction accrued prior to the date it becomes a Restricted
Subsidiary of the Company or is merged or consolidated with or into the
Company or any Restricted Subsidiary of the Company, (v) the net loss of any
Person, other than a Restricted Subsidiary of the Company, (vi) the net
income of any Person, other than a Restricted Subsidiary of the Company,
except to the extent of cash dividends or distributions paid to the Company
or a Restricted Subsidiary of the Company by such Person, (vii) in the case
of a successor to the referent Person by consolidation or merger or as a
transferee of the referent Person's assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets, (viii)
any non-cash compensation charges, including any arising from existing stock
options resulting from any merger or recapitalization transaction and (ix)
for purposes of Section 4.07 only, all cash and noncash interest expense with
respect to the Notes and any Indebtedness incurred pursuant to the terms of
clause (xvii) of the definition of Permitted Indebtedness. For purposes of
clause (iii)(w) of the first paragraph of Section 4.07 hereof, Consolidated
Net Income shall be reduced by any cash dividends paid with respect to any
series of Designated Preferred Stock.
"CONSOLIDATED NONCASH CHARGES" means, with respect to any Person,
for any period, the aggregate depreciation, amortization and other non-cash
charges and expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP
(excluding any such charges that require an accrual of or a reserve for cash
payments for any future period other than accruals or reserves associated
with mandatory repurchases of equity securities).
-5-
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Issue Date; or (ii) was nominated for election or
elected to such Board of Directors by any of the Permitted Holders or with
the approval of a majority of the Continuing Directors who were members of
such Board at the time of such nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of
the Trustee specified in Section 11.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"CREDIT FACILITIES" means one or more debt facilities (including,
without limitation, the New Credit Facility) or commercial paper facilities
with banks or other institutional lenders providing for revolving credit
loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables) and/or letters of credit or
banker's acceptances.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
the Company or any Restricted Subsidiary of the Company against fluctuations
in currency values.
"DEFAULT" means an event or condition the occurrence of which is,
or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"DESIGNATED NONCASH CONSIDERATION" means any noncash consideration
received by the Company or one of its Restricted Subsidiaries in connection
with an Asset Sale that is designated as Designated Noncash Consideration
pursuant to an Officer's Certificate executed by the principal executive
officer and the principal financial officer of the Company or such Restricted
Subsidiary at the time of such Asset Sale. Any particular item of Designated
Noncash Consideration will cease to be considered to be outstanding once it
has been sold for cash or Cash Equivalents. At the time of receipt of any
Designated Noncash Consideration, the Company shall deliver an Officer's
Certificate to the Trustee which shall state the fair market value of such
Designated Noncash Consideration and shall state the basis of such valuation,
which shall be a report of a nationally recognized investment banking,
appraisal or accounting firm with respect to the receipt in one or a series
of related transactions of Designated Noncash Consideration with a fair
market value in excess of $12.0 million.
"DESIGNATED PREFERRED STOCK" means Preferred Stock that is so
designated as Designated Preferred Stock, pursuant to an Officer's
Certificate executed by the principal executive officer and the principal
financial officer of the Company, on the issuance date thereof, the cash
proceeds of which are excluded from the calculation set forth in clause
(iii)(x) of the first paragraph of Section 4.07 hereof.
"DESIGNATED SENIOR DEBT" means (i) Indebtedness under or in respect
of the New Credit Facility and (ii) any other Indebtedness constituting
Senior Debt which, at the time of determination, has an aggregate principal
amount of at least $25.0 million and is specifically designated in the
instrument evidencing such Senior Debt as "Designated Senior Debt" by the
Company.
"DISQUALIFIED CAPITAL STOCK" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
-6-
constitute a Change of Control), matures (excluding any maturity as the
result of an optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control) on or prior to the final maturity
date of the Notes.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"EXCHANGE NOTES" means the 12% pay-in-kind Notes due 2009 to be
issued in exchange for the Initial Notes and Additional Notes pursuant to the
Registration Rights Agreement.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth
in the Registration Rights Agreement.
"FAIR MARKET VALUE" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors
of the Company acting reasonably and in good faith and shall be evidenced by
a Board Resolution of the Board of Directors of the Company delivered to the
Trustee.
"FOUR-QUARTER PERIOD" has the meaning specified in the definition
of Consolidated Fixed Charge Coverage Ratio.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect from time to
time.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, and for the payment of which the
United States pledges its full faith and credit.
"HEDGING AGREEMENT" means any agreement with respect to the hedging
of price risk associated with the purchase of commodities used in the
business of the Company and its Restricted Subsidiaries, so long as any such
agreement has been entered into in the ordinary course of business and not
for purposes of speculation.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations and all
Obligations under any title retention agreement (but excluding trade accounts
payable and other accrued liabilities arising in the ordinary course of
business), (v) all Obliga-
-7-
tions for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, (vi) guarantees and other
contingent obligations in respect of Indebtedness referred to in clauses (i)
through (v) above and clause (viii) below, (vii) all Obligations of any other
Person of the type referred to in clauses (i) through (vi) which are secured
by any Lien on any property or asset of such Person, the amount of such
Obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the Obligation so secured, (viii) all
Obligations under currency agreements and interest swap agreements of such
Person, and (ix) all Disqualified Capital Stock issued by such Person with
the amount of Indebtedness represented by such Disqualified Capital Stock
being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Disqualified Capital Stock
as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture,
and if such price is based upon, or measured by, the fair market value of
such Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock. For the purposes of calculating the amount of
Indebtedness of a Securitization Entity outstanding as of any date, the face
or notional amount of any interest in receivables or equipment that is
outstanding as of such date shall be deemed to be Indebtedness but any such
interests held by Affiliates of such Securitization Entity shall be excluded
for purposes of such calculation.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INITIAL NOTES" means the 12% pay-in-kind Notes due 2009 of the
Company issued on the Issue Date.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, that is not also a QIB.
"INTEREST PAYMENT DATE" shall have the meaning set forth in the
Notes.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
other Person calculated by applying a fixed or a floating rate of interest on
the same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
"INVESTMENT" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition by such Person of
any Capital Stock, bonds, notes, debentures or other securities or evidences
of Indebtedness issued by, any Person. "Investment" shall exclude extensions
of trade credit by the Company and its Restricted Subsidiaries in accordance
with normal trade practices of the Company or such Restricted Subsidiary, as
the case may be. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Common Stock
-8-
of any direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Restricted
Subsidiary is no longer a Restricted Subsidiary of the Company (or, in the
case of a Restricted Subsidiary that is not Wholly Owned Restricted
Subsidiary of the Company, such Restricted Subsidiary has a minority interest
that is held by an Affiliate of the Company that is not a Restricted
Subsidiary of the Company), the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair
market value of the Common Stock of such Restricted Subsidiary not sold or
disposed of.
"ISSUE DATE" means the date hereof.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue on such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"LIEN" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"MARKETABLE SECURITIES" means publicly traded debt or equity
securities that are listed for trading on a national securities exchange and
that were issued by a corporation whose debt securities are rated in one of
the three highest rating categories by either S&P or Moody's.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (other than the portion of any such deferred payment
constituting interest) received by the Company or any of its Restricted
Subsidiaries from such Asset Sale net of (i) reasonable out-of-pocket
expenses and fees relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees and sales commissions); (ii)
taxes paid or payable after taking into account any reduction in consolidated
tax liability due to available tax credits or deductions and any tax sharing
arrangements; and (iii) appropriate amounts to be provided by the Company or
any Restricted Subsidiary, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale.
"NEW CREDIT FACILITY" means the Credit Agreement dated as of the
Issue Date among the Company, Opco, the lenders party thereto in their
capacities as lenders thereunder and Bankers Trust Company, as administrative
agent, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise
-9-
modified from time to time, including any agreement extending the maturity
of, refinancing, replacing or otherwise restructuring (including increasing
the amount of available borrowings thereunder or adding Restricted
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor
or replacement agreement and whether by the same or any other agent, lender
or group of lenders.
"NOTES" means, collectively, the Initial Notes, any Additional
Notes, the Unrestricted Notes and the Exchange Notes each substantially in
the form of Exhibit A hereto, treated as a single class of securities, as
amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"OBLIGATIONS" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any Indebtedness.
"OFFERING" means the offering of the Notes by the Company.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"OFFICER's CERTIFICATE" means a certificate signed on behalf of the
Company by an Officer of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Sections 11.04 and 11.05 hereof.
"OPCO" means TransDigm Inc., a wholly owned subsidiary of the
Company.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Sections
11.04 and 11.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"PERMITTED BUSINESS" means any business (including stock or assets)
that derives a majority of its revenues from the business engaged in by the
Company and its Restricted Subsidiaries on the Issue Date and/or activities
that are reasonably similar, ancillary or related to, or a reasonable
extension, development or expansion of, the businesses in which the Company
and its Restricted Subsidiaries are engaged on the Issue Date.
"PERMITTED GROUP" means any group of investors that is deemed to be
a "person" (as such term is used in Section 13(d)(3) of the Exchange Act) by
virtue of the Stockholders Agreements, as the same may be amended, modified
or supplemented from time to time, provided that no single Person (together
with its Affiliates), other than the Permitted Holders and their Related
Parties, is the "beneficial owner" (as such term is used in Section 13(d) of
the Exchange Act), directly or indirectly, of more than 50% of the voting
power of the issued and outstanding Capital Stock of the Company that is
"beneficially owned" (as defined above) by such group of investors.
"PERMITTED HOLDERS" means Odyssey Investment Partners Fund, LP, its
Affiliates and any general or limited partners of Odyssey Investment Partners
Fund, L.P.
-10-
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(i) Indebtedness of the Company and any of its Restricted
Subsidiaries under the Notes and under the Senior Subordinated Notes
issued on the date hereof of Opco;
(ii) Indebtedness of the Company or any of its Restricted
Subsidiaries incurred pursuant to one or more Credit Facilities in an
aggregate principal amount at any time outstanding not to exceed $250.0
million, less: (A) the aggregate amount of Indebtedness of
Securitization Entities at the time outstanding, less (B) the amount of
all mandatory principal payments actually made by the Company or any
such Restricted Subsidiary since the Issue Date with the Net Cash
Proceeds of an Asset Sale in respect of term loans under a Credit
Facility (excluding any such payments to the extent refinanced at the
time of payment), and (C) further reduced by any repayments of revolving
credit borrowings under a Credit Facility with the Net Cash Proceeds of
an Asset Sale that are accompanied by a corresponding commitment
reduction thereunder; PROVIDED that the amount of Indebtedness permitted
to be incurred pursuant to the Credit Facilities in accordance with this
clause (ii) shall be in addition to any Indebtedness permitted to be
incurred pursuant to the Credit Facilities in reliance on, and in
accordance with, clauses (vii), (xiii) and (xiv) below;
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions therein;
(iv) Interest Swap Obligations of the Company or any of its
Restricted Subsidiaries covering Indebtedness of the Company or any of
its Restricted Subsidiaries; PROVIDED that any Indebtedness to which any
such Interest Swap Obligations correspond is otherwise permitted to be
incurred under this Indenture; and PROVIDED, FURTHER, that such Interest
Swap Obligations are entered into, in the judgment of the Company, to
protect the Company or any of its Restricted Subsidiaries from
fluctuation in interest rates on its outstanding Indebtedness;
(v) Indebtedness of the Company or any Restricted Subsidiary
under Hedging Agreements and Currency Agreements;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any such Restricted Subsidiaries; PROVIDED, HOWEVER, that: (a) if
the Company is the obligor on such Indebtedness and the payee is a
Restricted Subsidiary (other than any Indebtedness of the Company to a
Restricted Subsidiary incurred in connection with a guarantee or other
support of Indebtedness under a Credit Facility of such Restricted
Subsidiary), such Indebtedness is expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the Notes and
(b) (1) any subsequent issuance or transfer of Capital Stock that
results in any such Indebtedness being held by a Person other than the
Company or a Restricted Subsidiary thereof and (2) any sale or other
transfer of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary thereof (other than by way of
granting a Lien permitted under this Indenture or in connection with the
exercise of remedies by a secured creditor) shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be, that was not permitted
by this clause (vi);
-11-
(vii) Indebtedness (including Capitalized Lease Obligations)
incurred by the Company or any of its Restricted Subsidiaries to finance
the purchase, lease or improvement of property (real or personal) or
equipment (whether through the direct purchase of assets or the Capital
Stock of any person owning such assets) in an aggregate principal amount
outstanding not to exceed $6.0 million;
(viii) Refinancing Indebtedness of the Company or any Restricted
Subsidiary;
(ix) guarantees by the Company and its Restricted Subsidiaries
of each other's Indebtedness; PROVIDED that such Indebtedness is
permitted to be incurred under this Indenture;
(x) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification,
adjustment of purchase price, earn out or other similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or a Restricted Subsidiary of the Company, other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for the
purpose of financing such acquisition; PROVIDED that the maximum
assumable liability in respect of all such Indebtedness shall at no time
exceed the gross proceeds actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;
(xi) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted
Subsidiary of the Company in the ordinary course of business;
(xii) the incurrence by a Securitization Entity of Indebtedness
in a Qualified Securitization Transaction that is not recourse to the
Company or any Subsidiary of the Company (except for Standard
Securitization Undertakings);
(xiii) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries in connection with the acquisition of a
Permitted Business which Indebtedness is incurred on or prior to
September 30, 1999; PROVIDED that on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof and the use
of proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of
the Company would be greater than the greater of (x) the Consolidated
Fixed Charge Coverage Ratio of the Company immediately prior to the
incurrence of such Indebtedness and (y) the Consolidated Fixed Charge
Coverage Ratio of the Company on the Issue Date;
(xiv) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount that does not exceed $35.0
million at any one time outstanding (which amount may, but need not, be
incurred in whole or in part under a Credit Facility);
(xv) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business; PROVIDED, HOWEVER, that such Indebtedness is
extinguished within five business days of incurrence;
-12-
(xvi) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, issued in the
ordinary course of business of the Company or such Restricted
Subsidiary, including, without limitation, in order to provide security
for workers' compensation claims or payment obligations in connection
with self-insurance or similar requirements in the ordinary course of
business and other Indebtedness with respect to workers' compensation
claims, self-insurance obligations, performance, surety and similar
bonds and completion guarantees provided by the Company or any
Restricted Subsidiary of the Company in the ordinary course of business;
and
(xvii) the incurrence of Indebtedness of the Company in
connection with the redemption or repurchase from management employees
of the Company or any of its Restricted Subsidiaries of the Company's
common equity or options in respect thereof; PROVIDED, that such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Notes.
For purposes of determining compliance with Section 4.09 hereof, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (i) through
(xvii) above or is entitled to be incurred pursuant to the Consolidated Fixed
Charge Coverage Ratio provisions of Section 4.09 hereof, the Company shall,
in its sole discretion, classify (or later reclassify) such item of
Indebtedness in any manner that complies with such Section. Accrual of
interest, accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with
the same terms, and the payment of dividends on Disqualified Capital Stock in
the form of additional shares of the same class of Disqualified Capital Stock
will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Capital Stock for purposes of Section 4.09 hereof.
"PERMITTED INVESTMENTS" means: (i) Investments by the Company or
any Restricted Subsidiary of the Company in any Restricted Subsidiary of the
Company (other than a Restricted Subsidiary of the Company in which an
Affiliate of the Company that is not a Restricted Subsidiary of the Company
holds a minority interest) (whether existing on the Issue Date or created
thereafter) or any Person (including by means of any transfer of cash or
other property) if as a result of such Investment such Person shall become a
Restricted Subsidiary of the Company (other than a Restricted Subsidiary of
the Company in which an Affiliate of the Company that is not a Restricted
Subsidiary of the Company holds a minority interest) or that will merge with
or consolidate into the Company or a Restricted Subsidiary of the Company and
Investments in the Company by any Restricted Subsidiary of the Company; (ii)
investments in cash and Cash Equivalents; (iii) loans and advances to
employees and officers of the Company and its Restricted Subsidiaries for
bona fide business purposes in an aggregate principal amount not to exceed
$6.0 million at any one time outstanding; (iv) Currency Agreements, Hedging
Agreements and Interest Swap Obligations entered into in the ordinary course
of business and otherwise in compliance with this Indenture; (v) Investments
in securities of trade creditors or customers received pursuant to any plan
of reorganization or similar arrangement upon the bankruptcy or insolvency of
such trade creditors or customers or in good faith settlement of delinquent
obligations of such trade creditors or customers; (vi) Investments made by
the Company or its Restricted Subsidiaries as a result of consideration
received in connection with an Asset Sale made in compliance with Section
4.10 hereof; (vii) Investments existing on the Issue Date; (viii) accounts
receivable created or acquired in the ordinary course of business; (ix)
guarantees by the Company or a Restricted Subsidiary of the Company permitted
to be incurred under this Indenture; (x) additional
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Investments having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (x) that are at that time
outstanding, not to exceed $15.0 million (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value); (xi) any Investment by the Company or a
Subsidiary of the Company in a Securitization Entity or any Investment by a
Securitization Entity in any other Person in connection with a Qualified
Securitization Transaction; PROVIDED that any Investment in a Securitization
Entity is in the form of a Purchase Money Note or an equity interest; and
(xii) Investments the payment for which consists exclusively of Qualified
Capital Stock of the Company.
"PERMITTED LIENS" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen and repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(4) judgment Liens not giving rise to an Event of Default;
(5) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries;
(6) any interest or title of a lessor under any Capitalized
Lease Obligation;
(7) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary of the Company acquired,
constructed or improved in the ordinary course of business; PROVIDED,
HOWEVER, that (A) the related purchase money Indebtedness shall not
exceed the cost of such property or assets and shall not be secured by
any property or assets of the Company or any Restricted Subsidiary of
the Company other than the property and assets so acquired and (B) the
Lien securing such Indebtedness shall be created within 90 days of such
acquisition;
(8) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created
-14-
for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;
(9) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(10) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements
of the Company or any of its Restricted Subsidiaries, including rights
of offset and set-off;
(11) Liens securing Interest Swap Obligations which Interest
Swap Obligations relate to Indebtedness that is otherwise permitted
under this Indenture;
(12) Liens securing Indebtedness under Currency Agreements and
Hedging Agreements;
(13) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary with respect to obligations that do
not in the aggregate exceed $6.0 million at any one time outstanding;
(14) Liens on assets transferred to a Securitization Entity or
on assets of a Securitization Entity, in either case incurred in
connection with a Qualified Securitization Transaction;
(15) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries;
(16) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(17) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of custom duties in connection with
the importation of goods;
(18) Liens securing Acquired Indebtedness incurred in
compliance with Section 4.09 hereof;
(19) Liens placed upon assets of a Restricted Subsidiary of the
Company to secure Indebtedness of such Restricted Subsidiary that is
otherwise permitted under this Indenture; and
(20) Liens existing on the Issue Date, together with any Liens
securing Indebtedness incurred in reliance on clause (viii) of the
definition of Permitted Indebtedness in order to refinance the
Indebtedness secured by Liens existing on the Issue Date; PROVIDED that
the Liens securing the refinancing Indebtedness shall not extend to
property other than that pledged under the Liens securing the
Indebtedness being refinanced.
"PERMITTED SUBSIDIARY PREFERRED STOCK" means any series of
Preferred Stock of a Restricted Subsidiary of the Company that constitutes
Qualified Capital Stock and has a fixed dividend
-15-
rate, the liquidation value of all series of which, when combined with the
aggregate amount of Indebtedness of the Company and its Restricted
Subsidiaries incurred pursuant to clause (xiv) of the definition of Permitted
Indebtedness, does not exceed $6.0 million.
"PERSON" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"PREFERRED STOCK" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(c)(i) hereof to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"PRODUCTIVE ASSETS" means assets (including Capital Stock) that are
used or usable by the Company and its Restricted Subsidiaries in Permitted
Businesses.
"PURCHASE MONEY NOTE" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from the
Company or any Restricted Subsidiary of the Company in connection with a
Qualified Securitization Transaction, which note shall be repaid from cash
available to the Securitization Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables
or newly acquired equipment.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUALIFIED SECURITIZATION TRANSACTION" means any transaction or
series of transactions that may be entered into by the Company or any of its
Restricted Subsidiaries pursuant to which the Company or any of its
Subsidiaries may sell, convey or otherwise transfer to (i) a Securitization
Entity (in the case of a transfer by the Company or any of its Restricted
Subsidiaries); and (ii) any other Person (in the case of a transfer by a
Securitization Entity), or may grant a security interest in any accounts
receivable or equipment (whether now existing or arising or acquired in the
future) of the Company or any of its Restricted Subsidiaries, and any assets
related thereto including, without limitation, all collateral securing such
accounts receivable and equipment, all contracts and contract rights and all
guarantees or other obligations in respect of such accounts receivable and
equipment, proceeds of such accounts receivable and equipment and other
assets (including contract rights) which are customarily transferred or in
respect of which security interests are customarily granted in connection
with assets securitization transactions involving accounts receivable and
equipment.
"RECAPITALIZATION" means the recapitalization of the Company
consummated on the Issue Date.
-16-
"REFINANCE" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Refinancing, modification,
replacement, restatement, refunding, deferral, extension, substitution,
supplement, reissuance or resale of existing or future Indebtedness (other
than intercompany Indebtedness), including any additional Indebtedness
incurred to pay interest or premiums required by the instruments governing
such existing or future Indebtedness as in effect at the time of issuance
thereof ("Required Premiums") and fees in connection therewith; PROVIDED that
any such event shall not (i) directly or indirectly result in an increase in
the aggregate principal amount of Permitted Indebtedness (except to the
extent such increase is a result of a simultaneous incurrence of additional
Indebtedness (A) to pay Required Premiums and related fees or (B) otherwise
permitted to be incurred under this Indenture) of the Company and its
Restricted Subsidiaries; and (ii) create Indebtedness with a Weighted Average
Life to Maturity at the time such Indebtedness is incurred that is less than
the Weighted Average Life to Maturity at such time of the Indebtedness being
refinanced, modified, replaced, renewed, restated, refunded, deferred,
extended, substituted, supplemented, reissued or resold.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Issue Date by and among the Company and the other
parties on the signature pages thereto.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"RELATED PARTY" with respect to any Permitted Holder means (i)(A)
any spouse, sibling, parent or child of such Permitted Holder; or (B) the
estate of any Permitted Holder during any period in which such estate holds
Capital Stock of the Company for the benefit of any Person referred to in
clause (i)(A) or (ii) any trust, corporation, partnership, limited liability
company or other entity, the beneficiaries, stockholders, partners, owners or
Persons beneficially owning an interest of more than 50% of which consist of,
or the sole managing partner or managing member of which is, one or more
Permitted Holders and/or such other Persons referred to in the immediately
preceding clause (i).
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; PROVIDED
that if, and for so long as, any Designated Senior Debt lacks such a
representative, then the Representative for such Designated Senior Debt shall
at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Debt in respect of any Designated Senior
Debt.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"RESTRICTED NOTE" means a Note bearing the Private Placement Legend.
-17-
"RESTRICTED SUBSIDIARY" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date
or later acquired, which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such Person or to any other Person
from whom funds have been or are to be advanced by such Person on the
security of such Property.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIZATION ENTITY" means a Wholly Owned Subsidiary of the
Company (or another Person in which the Company or any Subsidiary of the
Company makes an Investment and to which the Company or any Subsidiary of the
Company transfers accounts receivable or equipment and related assets) which
engages in no activities other than in connection with the financing of
accounts receivable or equipment and which is designated by the Board of
Directors of the Company (as provided below) as a Securitization Entity (i)
no portion of the Indebtedness or any other Obligations (contingent or
otherwise) of which (A) is guaranteed by the Company or any Restricted
Subsidiary of the Company (excluding guarantees of Obligations (other than
the principal of, and interest on, Indebtedness)) pursuant to Standard
Securitization Undertakings; (B) is recourse to or obligates the Company or
any Restricted Subsidiary of the Company in any way other than pursuant to
Standard Securitization Undertakings; or (C) subjects any property or asset
of the Company or any Restricted Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other
than pursuant to Standard Securitization Undertakings; (ii) with which
neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on
terms no less favorable to the Company or such Restricted Subsidiary than
those that might be obtained at the time from Persons that are not Affiliates
of the Company, other than fees payable in the ordinary course of business in
connection with servicing receivables of such entity; and (iii) to which
neither the Company nor any Restricted Subsidiary of the Company has any
obligations to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Company shall
be evidenced to the Trustee by filing with the Trustee a certified copy of
the Board Resolution of the Company giving effect to such designation and an
Officer's Certificate certifying that such designation complied with
foregoing conditions.
-18-
"SENIOR DEBT" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable
law) on any Indebtedness of the Company under, or in respect of, any Credit
Facility, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any such Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Notes. Without limiting the generality of the
foregoing, "Senior Debt" shall include the principal of, premium, if any,
interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, (x) all
monetary obligations of every nature of the Company under the New Credit
Facility, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses
and indemnities (including all guarantees of the foregoing obligations), and
also (y) all Interest Swap Obligations (and guarantees thereof) related to
Indebtedness incurred under any Credit Facilities (to be evidenced as such by
an Officer's Certificate to be delivered to the Trustee upon incurrence of
such Indebtedness), in each case whether outstanding on the Issue Date or
thereafter incurred.
Notwithstanding the foregoing, "Senior Debt" shall not include (i)
that portion of any such Indebtedness incurred in violation of Section 4.09
hereof (but, as to any such obligation, no such violation shall be deemed to
exist for purposes of this clause (i) if the holder(s) of such obligation or
their representative and the Trustee shall have received an Officer's
Certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or in the case of revolving credit indebtedness, that
the incurrence of the entire committed amount thereof at the date on which
the initial borrowing thereunder is made would not) violate such provisions
of this Indenture), and (ii) any such Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of the
Company.
"SENIOR SUBORDINATED NOTES" means Opco's Senior Subordinated Notes
due 2008.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY," with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under
the Securities Act.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts
receivable or equipment transaction.
"STATED MATURITY" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
-19-
"STOCKHOLDERS AGREEMENTS" means those certain stockholders
agreements entered into in connection with the Recapitalization.
"SUBSIDIARY," with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the
votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person; or (ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly,
owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TOTAL ASSETS" means the total consolidated assets of the Company
and its Restricted Subsidiaries, as set forth on the Company's most recent
consolidated balance sheet.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder.
"UNRESTRICTED NOTE" means one or more Notes that do not bear and
are not required to bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" of any Person means (i ) any Subsidiary
of such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided in Section 4.07 hereof; and (ii) any Subsidiary
of an Unrestricted Subsidiary.
"U.S. SUBSIDIARY" means any Subsidiary of the Company that is
incorporated under the laws of the United States or any state thereof or the
District of Columbia.
"VOTING STOCK" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
then outstanding aggregate principal amount of such Indebtedness into (ii)
the sum of the total of the products obtained by multiplying (A) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payment of principal, including payment at final maturity, in
respect thereof by (B) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the making of such
payment.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means any Wholly
Owned Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" of any Person means any Subsidiary of
such Person of which all the outstanding voting securities (other than in the
case of a Restricted Subsidiary that is incorporated in a jurisdiction other
than a State in the United States or the District of Columbia, directors'
qualifying shares or an immaterial amount of shares required to be owned by
other Persons pursuant to applicable law) are owned by such Person or any
Wholly Owned Subsidiary of such Person.
-20-
SECTION 1.02. OTHER DEFINITIONS.
Term Defined in
---- Section
----------
"ACCELERATION NOTICE". . . . . . . . . . . . . . . . . . . 6.02
"AFFILIATE TRANSACTION". . . . . . . . . . . . . . . . . . 4.11
"AUTHENTICATION ORDER" . . . . . . . . . . . . . . . . . . 2.02
"BLOCKAGE PERIOD". . . . . . . . . . . . . . . . . . . . . 10.04
"CHANGE OF CONTROL OFFER". . . . . . . . . . . . . . . . . 4.15
"CHANGE OF CONTROL PAYMENT DATE" . . . . . . . . . . . . . 4.15
"COVENANT DEFEASANCE". . . . . . . . . . . . . . . . . . . 8.03
"DEFAULT NOTICE" . . . . . . . . . . . . . . . . . . . . . 10.04
"EVENT OF DEFAULT" . . . . . . . . . . . . . . . . . . . . 6.01
"INCUR". . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
"LEGAL DEFEASANCE" . . . . . . . . . . . . . . . . . . . . 8.02
"NET PROCEEDS OFFER" . . . . . . . . . . . . . . . . . . . 4.10
"NET PROCEEDS OFFER AMOUNT". . . . . . . . . . . . . . . . 4.10
"NET PROCEEDS OFFER PAYMENT DATE". . . . . . . . . . . . . 4.10
"NET PROCEEDS OFFER TRIGGER DATE". . . . . . . . . . . . . 4.10
"OFFER PERIOD" . . . . . . . . . . . . . . . . . . . . . . 3.09
"PAYING AGENT" . . . . . . . . . . . . . . . . . . . . . . 2.03
"PURCHASE DATE". . . . . . . . . . . . . . . . . . . . . . 3.09
"REFUNDING CAPITAL STOCK". . . . . . . . . . . . . . . . . 4.07
"REGISTRAR". . . . . . . . . . . . . . . . . . . . . . . . 2.03
"RESTRICTED PAYMENTS". . . . . . . . . . . . . . . . . . . 4.07
"RETIRED CAPITAL STOCK". . . . . . . . . . . . . . . . . . 4.07
SECTION 1.03. TRUST INDENTURE ACT DEFINITIONS.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "institutional trustee" means the Trustee;
and
"OBLIGOR" on the Notes 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 have the meanings so assigned to them.
-21-
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 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) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof, except that Additional
Notes may be in other denominations.
The terms and provisions contained in the Notes shall 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.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
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The Trustee shall, upon a written order of the Company signed by an
Officer (an "AUTHENTICATION ORDER") authenticate (i) Initial Notes for original
issue on the Issue Date in aggregate principal amount not to exceed $20,000,000
(except as provided in Section 2.07 hereof) in one or more series, (ii)
Additional Notes issued from time to time to pay interest pursuant to paragraph
1 of the Notes and (iii) Unrestricted Notes from time to time only in exchange
therefor, in each case upon a written order of the Company in the form of an
Officer's Certificate. Each such written order shall specify the amount of
Notes to be authenticated, whether the Notes are to be Initial Notes or
Unrestricted Notes and such other information as the Trustee shall reasonably
request.
The Authentication Order shall be based upon a Board Resolution of the
Company to similar effect filed with the Trustee and shall specify the amount of
such Notes to be authenticated and the date on which the original issue of such
Notes is to be authenticated. The Authentication Order shall also provide
instructions concerning registration, amounts for each Holder and delivery. The
aggregate principal amount of Notes outstanding at any time may not exceed
$20,000,000 except as provided in Section 2.07 hereof and except as provided in
clause (ii) of the immediately preceding paragraph.
The Notes shall be issued only in fully registered form, without
coupons and only in denominations of $1,000 and any integral multiple thereof,
except that Additional Notes, Exchange Notes and Notes issued upon transfer,
exchange or replacement may be issued in other denominations. All Notes issued
under this Indenture shall vote and consent together on all matters as one class
and no series of Notes will have the right to vote or consent as a separate
class on any matter.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "REGISTRAR" includes any co-registrar and the term
"PAYING AGENT" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The Company or any
of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest (including Additional
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Interest, if any) on the Notes, and will notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Upon request by a Holder of Notes and such Holder's compliance
with the provisions of this Section 2.06(a), the Registrar shall register the
transfer or exchange of Notes (in whole or in part). Prior to such registration
of transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(a).
(i) RESTRICTED NOTES TO RESTRICTED NOTES. Any Restricted Note may be
transferred to and registered in the name of Persons who take delivery
thereof in the form of a Restricted Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
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(ii) RESTRICTED NOTES TO UNRESTRICTED NOTES. Any Restricted Note may
be exchanged by the Holder thereof for an Unrestricted Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted 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 (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives the following:
(1) if the Holder of such Restricted Notes proposes to
exchange such Notes for an Unrestricted Note, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (1) thereof; or
(2) if the Holder of such Restricted Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of an Unrestricted Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
(iii) UNRESTRICTED NOTES TO UNRESTRICTED NOTES. A Holder of
Unrestricted Notes may transfer such Notes to a Person who takes delivery
thereof in the form of an Unrestricted Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Notes pursuant to the instructions from the Holder thereof.
(b) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate Notes in an aggregate principal amount equal to
the principal amount of the Restricted Notes accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Notes the Company shall
execute and the Trustee shall authenticate and deliver to the Persons designated
by the Holders of Notes so accepted Notes in the appropriate principal amount.
(c) LEGENDS. The following legends shall appear on the face of all
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
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(A) Except as permitted by subparagraph (B) below, each Note
(and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR"), (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY THEREOF OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS
SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. AS USED HEREIN, THE
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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 Note issued pursuant to
subpararaphs (a)(ii), (a)(iii) or (b) to this Section 2.06 (and all
Notes issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
(ii) ORIGINAL ISSUE DISCOUNT LEGEND. Each Note shall 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 NOTE IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT; CONTACT ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ AT TRANSDIGM HOLDING
COMPANY AT ▇▇▇-▇▇▇-▇▇▇▇ TO DETERMINE FOR EACH $1,000 PRINCIPAL AMOUNT
OF THIS SECURITY, THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT AND THE YIELD TO MATURITY."
(d) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes upon the Company's
order or at the Registrar's request.
(ii) No service charge shall be made to a Holder of a Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of the mailing of notice of
redemption under Section 3.03 hereof and ending at the close of business on
such day, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part or (c) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
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(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Notes in accordance with the
provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. Except as
set forth in Section 2.09 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
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SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall return
canceled Notes to the Company. Certification of the destruction of all canceled
Notes shall be delivered to the Company. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest in the manner provided in
paragraph 1 of the Note, to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Notes and in Section 4.01
hereof. The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of the proposed
payment. The Company shall fix or cause to be fixed each such special record
date and payment date, PROVIDED that no such special record date shall be less
than 10 days prior to the related payment date for such defaulted interest. At
least 15 days before the special record date, the Company (or, upon the written
request of the Company, the Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness
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of such numbers either as printed on the Notes or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or the omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officer's Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the redemption
price and (iv) the CUSIP numbers, if any, of the Notes to be redeemed.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a PRO RATA basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount to be redeemed. The provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a
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new Note or Notes in principal amount equal to the unredeemed portion shall
be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officer's Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
Prior to 10 a.m. New York City time on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
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SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Notes will be redeemable, in whole or in part, upon not less
than 30 nor more than 60 days' prior notice, at the option of the Company at any
time up to and including December 3, 2003 at a price equal to 100% of the
principal amount thereof plus accrued and unpaid interest to the applicable
redemption date.
(b) At any time from December 4, 2003 to December 2, 2005, the
Company may, at its option, redeem the Notes, in whole or in part, upon not less
than 30 nor more than 60 days' prior notice at a redemption price equal to the
present value of the sum of all the remaining interest, premium and principal
payments that would become due on the Notes as if the Notes were to remain
outstanding and be redeemed on the seventh anniversary of the Issue Date,
computed using a discount rate equal to the Treasury Rate plus 50 basis points
to the date of redemption.
"TREASURY RATE" means, as of any redemption date, the yield to
maturity as of such redemption date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to such redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to the seventh anniversary
of the Issue Date; PROVIDED that if the period from the redemption date to the
seventh anniversary of the Issue Date is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
(c) Commencing on December 3, 2005, the Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest to the applicable redemption date, if redeemed during the twelve
month period beginning on the December 3 of the years indicated below:
PERCENTAGE
OF PRINCIPAL
YEAR AMOUNT
---- ------------
2005.................................... 106.0%
2006.................................... 104.0%
2007.................................... 102.0%
2008 and thereafter..................... 100.0%
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
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SECTION 3.08. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF NET PROCEEDS OFFER AMOUNT.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence a Net Proceeds Offer, it shall follow the procedures
specified below.
The Net Proceeds Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "OFFER PERIOD"). No later than
five Business Days after the termination of the Offer Period (the "PURCHASE
DATE"), the Company shall purchase the Net Proceeds Offer Amount or, if less
than the Net Proceeds Offer Amount has been tendered, all Notes tendered in
response to the Net Proceeds Offer. Payment for any Notes so purchased shall be
made in the same manner as cash interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related Interest Payment Date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Net Proceeds Offer.
Upon the commencement of a Net Proceeds Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Net Proceeds
Offer. The Net Proceeds Offer shall be made to all Holders. The notice, which
shall govern the terms of the Net Proceeds Offer, shall state:
(a) that the Net Proceeds Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Net
Proceeds Offer shall remain open;
(b) the Net Proceeds Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Net Proceeds Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to any
Net Proceeds Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(f) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of
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the Offer Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a PRO RATA basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. on the Purchase Date, the Company shall, to
the extent lawful, accept for payment, on a PRO RATA basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Net Proceeds Offer, or if less than the Net Proceeds Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officer's
Certificate stating that such Notes were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company shall authenticate and mail
or deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Net Proceeds Offer on the Purchase
Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
To the extent that the provisions of any securities laws or
regulations conflict with this Section 3.09 or Section 4.10 hereof, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 3.09 or Section
4.10 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal amount,
premium, if any, and interest and Additional Interest, if any, on the Notes on
the dates and in the manner provided in the Notes. Principal amount, premium,
if any, and interest and Additional Interest, if any, shall be considered paid
in cash on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal amount, premium, if
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any, and interest and Additional Interest, if any, then due. Amounts paid in
Additional Notes shall be considered paid on the date due if the Additional
Notes are executed and authenticated as set forth in Section 2.02 hereof and
delivered to the person entitled thereto (or held by the Trustee or the
authenticating agent in custody for such person) on or prior to such date. The
Company shall pay all Additional Interest, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Company shall furnish to the Holders
of Notes (i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
its consolidated Subsidiaries (showing in reasonable detail, either on the face
of the financial statements or in the footnotes thereto and in Management's
Discussion and Analysis of Financial Condition and Results of Operations, the
financial condition and results of operations of the Company and its Restricted
Subsidiaries separate from the
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financial condition and results of operations of the Unrestricted Subsidiaries
of the Company) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants, (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports, in each case, within the time
periods specified in the SEC's rules and regulations and (iii) any other
information provided to the holders of the Senior Subordinated Notes pursuant to
Section 4.03 of the indenture relating to the Senior Subordinated Notes. In
addition, following consummation of the Exchange Offer, whether or not required
by the rules and regulations of the SEC, the Company shall file a copy of all
such information and reports with the SEC for public availability within the
time periods specified in the SEC's rules and regulations (unless the SEC will
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all times
comply with TIA Section 314(a).
(b) For so long as any Notes remain outstanding, the Company shall
furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officer's Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. For
purposes of this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officer's Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
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SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock; (2) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any
direct or indirect parent of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock; (3) make any
principal payment on, purchase, defease, redeem, prepay, decrease or otherwise
acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company
that is subordinate or junior in right of payment to the Notes; or (4) make any
Investment (other than Permitted Investments) (each of the foregoing actions set
forth in clauses (1), (2), (3) and (4) being referred to as a "RESTRICTED
PAYMENT"); if at the time of such Restricted Payment or immediately after giving
effect thereto: (i) a Default or an Event of Default shall have occurred and be
continuing; or (ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.09 hereof; or (iii) the aggregate amount of Restricted Payments
(including such proposed Restricted Payment) made subsequent to the Issue Date
(other than Restricted Payments made pursuant to clauses (2)(i), (3), (4), (5),
(6), (7), (8) and (9) of the following paragraph) shall exceed the sum, without
duplication, of: (w) 50% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of
the Company earned subsequent to the beginning of the first fiscal quarter
commencing after the Issue Date and on or prior to the date the Restricted
Payment occurs (the "REFERENCE DATE") (treating such period as a single
accounting period); PLUS (x) 100% of the aggregate net cash proceeds (including
the fair market value of property other than cash that would constitute
Marketable Securities or a Permitted Business) received by the Company from any
Person (other than a Subsidiary of the Company) from the issuance and sale
subsequent to the Issue Date and on or prior to the Reference Date of Qualified
Capital Stock of the Company; PLUS (y) without duplication of any amounts
included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of
any equity contribution received by the Company from a holder of the Company's
Capital Stock (excluding, in the case of clauses (iii)(x) and (y), any net cash
proceeds used
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to redeem the Senior Subordinated Notes in compliance with the provisions set
forth under Section 3.07(b) in the indenture relating thereto); PLUS (z) 100% of
the aggregate net proceeds (including the fair market value of property other
than cash that would constitute Marketable Securities or a Permitted Business)
of any (A) sale or other disposition of any Investment (other than a Permitted
Investment) made by the Company and its Restricted Subsidiaries or (B) dividend
from, or the sale of the stock of, an Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph shall not prohibit: (1) the payment of any
dividend or the consummation of any irrevocable redemption within 60 days after
the date of declaration of such dividend or notice of such redemption if the
dividend or payment of the redemption price, as the case may be, would have been
permitted on the date of declaration or notice; (2) if no Default or Event of
Default shall have occurred and be continuing or shall occur as a consequence
thereof, the acquisition of any shares of Capital Stock of the Company (the
"RETIRED CAPITAL STOCK") either (i) solely in exchange for shares of Qualified
Capital Stock of the Company (the "REFUNDING CAPITAL STOCK") or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the
Company and, in the case of subclause (i) of this clause (2), if immediately
prior to the retirement of the Retired Capital Stock the declaration and payment
of dividends thereon was permitted under clause (5) of this paragraph, the
declaration and payment of dividends on the Refunding Capital Stock in an
aggregate amount per year no greater than the aggregate amount of dividends per
annum that was declarable and payable on such Retired Capital Stock immediately
prior to such retirement; PROVIDED that at the time of the declaration of any
such dividends on the Refunding Capital Stock, no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence thereof;
(3) if no Default or Event of Default shall have occurred and be continuing, the
acquisition of any Permitted Company Debt (as defined in Section 4.16 hereof)
that is subordinate or junior in right of payment to the Notes either (i) solely
in exchange for shares of Qualified Capital Stock of the Company, or (ii)
through the application of net proceeds of a substantially concurrent sale for
cash (other than to a Subsidiary of the Company) of (A) shares of Qualified
Capital Stock of the Company or (B) Refinancing Indebtedness; (4) if no Default
or Event of Default shall have occurred and be continuing or would occur as a
consequence thereof, the declaration and payment of dividends to holders of any
class or series of Designated Preferred Stock (other than Disqualified Capital
Stock) issued after the Issue Date (including, without limitation, the
declaration and payment of dividends on Refunding Capital Stock in excess of the
dividends declarable and payable thereon pursuant to clause (2) of this
paragraph); PROVIDED that, at the time of such issuance, the Company, after
giving effect to such issuance on a pro forma basis, would have had a
Consolidated Fixed Charge Coverage Ratio of at least 1.4 to 1.0; (5) payments
for the redemption or repurchase of the Company's common equity or options in
respect thereof, in each case in connection with the repurchase provisions of
employee stock option or stock purchase agreements or other agreements to
compensate management employees of the Company or any of its Restricted
Subsidiaries; PROVIDED that all such redemptions or repurchases pursuant to this
clause (5) shall not exceed $2.4 million in any fiscal year (which amount shall
be increased by the amount of any net cash proceeds received from the sale since
the Issue Date of Capital Stock (other than Disqualified Capital Stock) to
members of the Company's management team that have not otherwise been applied to
the payment of Restricted Payments pursuant to the terms of clause (iii) of the
immediately preceding paragraph and by the cash proceeds of any "key-man" life
insurance policies which are used to make such redemptions or repurchases) since
the Issue Date; PROVIDED, FURTHER, that the cancellation of Indebtedness owing
to the Company or its Restricted Subsidiaries from members of management of the
Company or any of its Restricted Subsidiaries in connection with any repurchase
of Capital Stock of the Company (or warrants or options or rights to ac-
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quire such Capital Stock) will not be deemed to constitute a Restricted Payment
under this Indenture; (6) repurchases of Capital Stock deemed to occur upon the
exercise of stock options if such Capital Stock represents a portion of the
exercise price thereof; (7) other Restricted Payments in an aggregate amount not
to exceed $9.0 million; (8) Restricted Payments made in connection with the
funding of the Transactions subsequent to the issuance of the Notes and (9)
Indebtedness incurred pursuant to clause (xvii) of the definition of "Permitted
Indebtedness".
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (iii) of the first
paragraph of this Section 4.07, amounts expended pursuant to clauses (1) and (2)
(ii) shall be included in such calculation, PROVIDED amounts expended pursuant
to clauses (2)(i), (3), (4), (5), (6), (7), (8) and (9) shall be excluded from
such calculation.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries shall not make any Restricted Payments to Odyssey Investment
Partners, Fund, L.P. or any of its Affiliates until (a) such time as the initial
holders of the Initial Notes shall not own any Notes or (b) if earlier and if
solely as a result of (and immediately following) one or more sales of Notes
made by such initial holders at such initial holders' option (other than sales
made in connection with a Net Proceeds Offer), such time as such initial holders
shall, in the aggregate, own less than $5.0 million in principal amount of
Notes. For purposes of this paragraph, "initial holders" means KIA IV-TD, LLC
(as transferee of ▇▇▇▇▇ Investment Associates IV, L.P.) and ▇▇▇▇▇ Equity
Partners II, L.P.
The Board of Directors may designate any Subsidiary (other than Opco)
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Company or any other Subsidiary of the Company
that is not a Subsidiary of the Subsidiary to be so designated; PROVIDED that
(i) the Company certifies to the Trustee that such designation complies with
this Section 4.07; and (ii) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary only if (x) immediately after giving effect to
such designation, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.09
hereof and (y) immediately before and immediately after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing provisions.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any Restricted Subsidiary of the Company to: (a)
pay dividends or make any other distributions on or in respect of its Capital
Stock; (b) make loans or advances or pay any Indebtedness or other obligation
owed to the Company or any other Restricted Subsidiary of the Company; or (c)
transfer any of its property or assets to the Com-
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pany or any other Restricted Subsidiary of the Company, except for such
encumbrances or restrictions existing under or by reason of: (1) applicable law;
(2) this Indenture; (3) non-assignment provisions of any contract or any lease
of any Restricted Subsidiary of the Company entered into in the ordinary course
of business; (4) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or assets of the
Person so acquired; (5) the Senior Subordinated Notes and the New Credit
Facility; (6) agreements existing on the Issue Date to the extent and in the
manner such agreements are in effect on the Issue Date; (7) restrictions on the
transfer of assets subject to any Lien permitted under this Indenture imposed by
the holder of such Lien; (8) restrictions imposed by any agreement to sell
assets or Capital Stock permitted under this Indenture to any Person pending the
closing of such sale; (9) any agreement or instrument governing Capital Stock of
any Person that is acquired; (10) any Purchase Money Note or other Indebtedness
or other contractual requirements of a Securitization Entity in connection with
a Qualified Securitization Transaction; provided that such restrictions apply
only to such Securitization Entity; (11) other Indebtedness on the Issue Date or
permitted to be issued or incurred under this Indenture; PROVIDED that any such
restrictions are ordinary and customary with respect to the type of Indebtedness
being incurred (under the relevant circumstances); (12) restrictions on cash or
other deposits or net worth imposed by customers under contracts entered into in
the ordinary course of business; and (13) any encumbrances or restrictions
imposed by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (l2) above;
PROVIDED that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith
judgment of the Company's Board of Directors (evidenced by a Board Resolution)
whose judgment shall be conclusively binding, not materially more restrictive
with respect to such dividend and other payment restrictions than those
contained in the dividend or other payment restrictions prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "INCUR") any
Indebtedness (other than Permitted Indebtedness); PROVIDED, HOWEVER, that if no
Default or Event of Default shall have occurred and be continuing at the time or
as a consequence of the incurrence of any such Indebtedness, the Company and its
Restricted Subsidiaries may incur Indebtedness (including, without limitation,
Acquired Indebtedness), in each case if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company would have been greater than 1.4 to
1.0.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors); (ii) at least 75% of the consideration received
by the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be in the form of cash or Cash Equivalents and is received at the
time of such disposition; PROVIDED that the amount of: (a) any liabilities (as
shown on the
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Company's or such Restricted Subsidiary's most recent balance sheet) of the
Company or any such Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Notes) that are assumed by the transferee of any
such assets; (b) any notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the
Company or such Restricted Subsidiary into cash within 90 days of the receipt
thereof (to the extent of the cash received); and (c) any Designated Noncash
Consideration received by the Company or any of its Restricted Subsidiaries in
such Asset Sale having an aggregate fair market value, taken together with all
other Designated Noncash Consideration received pursuant to this clause (c) that
is at that time outstanding, not to exceed 5% of Total Assets at the time of the
receipt of such Designated Noncash Consideration (with the fair market value of
each item of Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in value), shall be
deemed to be cash for the purposes of this provision or for purposes of the
second paragraph of this Section 4.10; and (iii) upon the consummation of an
Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to
apply, the Net Cash Proceeds relating to such Asset Sale within 399 days of
receipt thereof either (A) to prepay any Senior Debt or Indebtedness of a
Restricted Subsidiary and, in the case of any such Indebtedness under any
revolving credit facility, effect a corresponding reduction in the availability
under such revolving credit facility (or effect a permanent reduction in the
availability under such revolving credit facility regardless of the fact that no
prepayment is required in order to do so (in which case no prepayment should be
required)), (B) to reinvest in Productive Assets, or (C) a combination of
prepayment and investment permitted by the foregoing clauses (iii)(A) and
(iii)(B). Pending the final application of any such Net Cash Proceeds, the
Company or such Restricted Subsidiary may temporarily reduce Indebtedness under
a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds
in Cash Equivalents. On the 400th day after an Asset Sale or such earlier date,
if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset
Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the preceding
sentence (each, a "NET PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of
Net Cash Proceeds which have not been applied on or before such Net Proceeds
Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of
the next preceding sentence (each a "NET PROCEEDS OFFER AMOUNT") shall be
applied by the Company or such Restricted Subsidiary to make an offer to
purchase (the "NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER PAYMENT
DATE") not less than 30 nor more than 60 days following the applicable Net
Proceeds Offer Trigger Date, from all Holders on a PRO RATA basis, the maximum
amount of Notes that may be purchased with the Net Proceeds Offer Amount at a
price equal to 100% of the principal amount of the Notes to be purchased, plus
accrued and unpaid interest thereon, if any, to the date of purchase; PROVIDED,
HOWEVER, that if at any time any non-cash consideration (including any
Designated Noncash Consideration) received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any Asset Sale
is converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $12.0
million, the application of the Net Cash Proceeds constituting such Net Proceeds
Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net
Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer
Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to
such initial Net Proceeds Offer Amount from all Asset Sales by the Company and
its Restricted Subsidiaries aggregates at least $12.0 million, at which time the
Company or such Restricted Subsidiary shall apply all Net Cash Proceeds
constituting all Net Proceeds Offer Amounts that have been so deferred to make a
Net Proceeds Offer (the first date the ag-
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gregate of all such deferred Net Proceeds Offer Amounts is equal to $12.0
million or more shall be deemed to be a Net Proceeds Offer Trigger Date).
Notwithstanding the immediately preceding paragraph, the Company and
its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraph to the extent that: (i) at least 75% of
the consideration for such Asset Sale constitutes Productive Assets, cash, Cash
Equivalents and/or Marketable Securities; and (ii) such Asset Sale is for fair
market value; PROVIDED that any consideration consisting of cash, Cash
Equivalents and/or Marketable Securities received by the Company or any of its
Restricted Subsidiaries in connection with any Asset Sale permitted to be
consummated under this paragraph shall constitute Net Cash Proceeds subject to
the provisions of the preceding paragraph.
Notice of each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 30 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in Section 3.09 hereof. To the extent that the aggregate
amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net
Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer
Amount for general corporate purposes or for any other purpose not prohibited by
this Indenture. Upon completion of any such Net Proceeds Offer, the Net
Proceeds Offer Amount shall be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 4.10, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.10 by virtue thereof.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to occur any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (an "AFFILIATE
TRANSACTION"), other than Affiliate Transactions on terms that are not
materially less favorable than those that might reasonably have been obtained in
a comparable transaction at such time on an arm's-length basis from a Person
that is not an Affiliate of the Company; PROVIDED, HOWEVER, that for a
transaction or series of related transactions with an aggregate value of $2.5
million or more, at the Company's option, either: (i) a majority of the
disinterested members of the Board of Directors of the Company shall determine
in good faith that such Affiliate Transaction is on terms that are not
materially less favorable than those that might reasonably have been obtained in
a comparable transaction at such time on an arm's-length basis from a Person
that is not an Affiliate of the Company or (ii) the Board of Directors of the
Company or any such Restricted Subsidiary party to such Affiliate Transaction
shall have received an opinion from a nationally recognized investment banking,
appraisal or accounting firm that such Affiliate Transaction is on terms not
materially less favorable than those that might reasonably have been obtained in
a comparable transaction at such time on an arm's-length basis from a Person
that is not an Affiliate of the Company; and PROVIDED, FURTHER, that for an
Affiliate Transaction with an aggregate value of $10.0 million or more the Board
of Directors of the Company or any such Restricted Subsidiary party to such
Affiliate Transaction shall have received an opinion from a nationally
recognized
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investment banking, appraisal or accounting firm that such Affiliate Transaction
is on terms not materially less favorable than those that might reasonably have
been obtained in a comparable transaction at such time on an arm's-length basis
from a Person that is not an Affiliate of the Company.
(b) The restrictions set forth in Section 4.11(a) hereof shall not
apply to: (i) reasonable fees and compensation paid to, and indemnity provided
on behalf of, officers, directors, employees or consultants of the Company or
any Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management; (ii) transactions exclusively
between or among the Company and any of its Restricted Subsidiaries or
exclusively between or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by this Indenture; (iii) any agreement
as in effect as of the Issue Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material respect
than the original agreement as in effect on the Issue Date; (iv) Restricted
Payments or Permitted Investments permitted by this Indenture; (v) transactions
effected as part of a Qualified Securitization Transaction; (vi) the payment of
customary annual management, consulting and advisory fees and related expenses
to the Permitted Holders and their Affiliates made pursuant to any financial
advisory, financing, underwriting or placement agreement or in respect of other
investment banking activities, including, without limitation, in connection with
acquisitions or divestitures which are approved by the Board of Directors of the
Company or such Restricted Subsidiary in good faith; (vii) payments or loans to
employees or consultants that are approved by the Board of Directors of the
Company in good faith; (viii) sales of Qualified Capital Stock; (ix) the
existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar agreements
which it may enter into thereafter; PROVIDED, HOWEVER, that the existence of, or
the performance by the Company or any of its Restricted Subsidiaries of
obligations under, any future amendment to any such existing agreement or under
any similar agreement entered into after the Issue Date shall only be permitted
by this clause (ix) to the extent that the terms of any such amendment or new
agreement are not disadvantageous to the Holders of Notes in any material
respect; and (x) transactions permitted by, and complying with, the provisions
of Article 5 hereof.
SECTION 4.12. LIENS.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets, or any proceeds therefrom, of the Company or any of its Restricted
Subsidiaries whether owned on the Issue Date or acquired after the Issue Date,
in each case to secure Indebtedness or trade payables, unless: (i) in the case
of Liens securing Indebtedness that is expressly subordinate or junior in right
of payment to the Notes, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens and (ii) in all
other cases, the Notes are equally and ratably secured, except for (A) Liens
existing as of the Issue Date to the extent and in the manner such Liens are in
effect on the Issue Date, (B) Liens securing Credit Facilities, including,
without limitation, the New Credit Facility, (C) Liens securing the Notes, (D)
Liens of the Company or a Wholly Owned Restricted Subsidiary of the Company on
assets of any Restricted Subsidiary of the Company, (E) Liens securing
Refinancing Indebtedness which is incurred to Refinance any Indebtedness that
was secured by a Lien permitted under this Indenture and which has been incurred
in accordance with the provisions of this Indenture; PROVIDED, HOWEVER, that
such Liens do not
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extend to or cover any categories of property or assets of the Company or any of
its Restricted Subsidiaries not securing the Indebtedness so Refinanced, (F)
Permitted Liens and (G) Liens securing Indebtedness of any Restricted
Subsidiary.
SECTION 4.13. CONDUCT OF BUSINESS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any businesses a majority of whose revenues are not
derived from businesses that are the same or reasonably similar, ancillary or
related to, or a reasonable extension, development or expansion of, the
businesses in which the Company and its Restricted Subsidiaries are engaged on
the Issue Date.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
its Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) If a Change of Control occurs, each Holder will have the right to
require that the Company purchase all or a portion of such Holder's Notes
pursuant to the offer described below (the "CHANGE OF CONTROL OFFER"), at a
purchase price equal to 101% of the principal amount thereof plus accrued
interest to the date of purchase. Within 30 days following the date upon which
the Change of Control occurred, the Company must send, by first class mail, a
notice to each Holder, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state, among other things, the purchase date,
which must be no earlier than 30 days nor later than 60 days from the date such
notice is mailed, other than as may be required by law (the "CHANGE OF CONTROL
PAYMENT DATE").
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
applicable Trustee the Notes so accepted together with an Officer's Certificate
stating the aggregate principal amount of Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder
of Notes so tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; PROVIDED that each such new Note will
be in a principal amount of $1,000 or an integral multiple thereof. The Company
shall publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
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Prior to the mailing of the notice referred to above, but in any event
within 30 days following any Change of Control, the Company covenants to: (i)
repay in full all Indebtedness under all Credit Facilities (including the New
Credit Facility) the terms of which require repayment upon a Change of Control;
or (ii) obtain the requisite consents under all Credit Facilities (including the
New Credit Facility) to permit the repurchase of the Notes as provided below.
The Company's failure to comply with the covenant described in the immediately
preceding sentence shall constitute an Event of Default described in clause (c)
and not in clause (b) under "Events of Default" below.
(c) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Change of Control Offer.
To the extent that the Company complies with the provisions of any such
securities laws or regulations, the Company shall not be deemed to have breached
its obligations under this Section 4.15.
(d) Notwithstanding anything to the contrary in this Section 4.15,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.15 hereof and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
SECTION 4.16. ADDITIONAL INDEBTEDNESS.
The Company shall not make any principal payments on, purchase,
defease, redeem, prepay or otherwise acquire or retire for value, any Excluded
Company Debt other than Permitted Company Debt prior to the repurchase of the
Notes.
"EXCLUDED COMPANY DEBT" shall mean any Indebtedness (including, for
the avoidance of doubt, Permitted Indebtedness) of the Company under which the
Company is the primary obligor.
"PERMITTED COMPANY DEBT" shall mean: (a) Indebtedness of the Company
pursuant to one or more Credit Facilities; (b) guarantees by the Company of the
Indebtedness of any of its Restricted Subsidiaries, PROVIDED that the
Indebtedness of such Restricted Subsidiaries is permitted to be incurred under
the Indenture; (c) Indebtedness of the Company under which the Company becomes
the primary obligor following a default upon any of the preceding Indebtedness
of any of its Restricted Subsidiaries that the Company guaranteed in compliance
with clause (b); (d) Non-Permanent Indebtedness incurred by the Company in
connection with the acquisition of any business, Person or assets; or (e)
Indebtedness incurred pursuant to clause (xvii) of the definition of "Permitted
Indebtedness" to the extent such payments are permitted by Section 4.07 hereof.
"NON-PERMANENT INDEBTEDNESS" shall mean (a) Indebtedness under which
the Company is the primary obligor represented by bridge notes and bridge loans
or other similar instruments; and (b) any Indebtedness that is intended to be
temporary at the time of its incurrence; PROVIDED that any Indebtedness issued
in exchange for or in connection with the refinancing of the Indebtedness
described in clauses (a) and (b) shall be deemed not to be Non-Permanent
Indebtedness.
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SECTION 4.17. NO SENIOR SUBORDINATED DEBT.
Notwithstanding the provisions of Section 4.09 hereof, the Company
shall not incur any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt and senior in any respect in right of payment to the
Notes.
SECTION 4.18. RESTRICTION ON PREFERRED STOCK OF CERTAIN SUBSIDIARIES.
The Company shall not permit any of its non-domestic Restricted
Subsidiaries to issue any preferred stock, or permit any Person to own or hold
an interest in any preferred stock of any such Subsidiary, except for preferred
stock issued to the Company or a Wholly Owned Subsidiary of the Company.
SECTION 4.19. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF OPCO.
The Company (i) shall not transfer, convey, sell, lease or otherwise
dispose of any Capital Stock of Opco to any Person (other than as collateral
security for its obligations in respect to any Senior Debt) and (ii) will not
permit Opco to issue any of its Capital Stock (other than, if necessary, shares
of its Capital Stock constituting directors' qualifying shares) to any Person
other than to the Company.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless (i) either: (a) the Company shall be the surviving or continuing
corporation; or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale, assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "SURVIVING ENTITY"): (x) shall
be a corporation organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia; and (y) shall expressly
assume, by supplemental indenture (in form and substance satisfactory to the
Trustee), executed and delivered to the Trustee, the due and punctual payment of
the principal of, and premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, this Indenture and the Registration
Rights Agreement on the part of the Company to be performed or observed; (ii)
except in the case of (A) a merger of the Company with or into a Wholly Owned
Restricted Subsidiary of the Company (B) a merger entered into solely for the
purpose of reincorporating the Company in another jurisdiction, or (C) the
merger of Phase II Acquisition Corp. with and into the Company, immediately
after giving effect to such transaction and the assumption contemplated by
clause (1)(b)(y) above (including giving effect to any Indebtedness and Ac-
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quired Indebtedness incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, shall be
able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09
hereof; (iii) except in the case of (A) a merger of the Company with or into a
Wholly Owned Restricted Subsidiary of the Company (B) a merger entered into
solely for the purpose of reincorporating the Company in another jurisdiction,
or (C) the merger of Phase II Acquisition Corp. with and into the Company,
immediately after giving effect to such transaction and the assumption
contemplated by clause (1)(b)(y) above (including, without limitation, giving
effect to any Indebtedness and Acquired Indebtedness incurred and any Lien
granted in connection with or in respect of the transaction), no Default or
Event of Default shall have occurred or be continuing; and (iv) the Company or
the Surviving Entity shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied; PROVIDED that no such Officer's Certificate or
Opinion of Counsel need be delivered in connection with the merger of Phase II
Acquisition Corp. with and into the Company.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company. However, transfer of assets between or among the Company and its
Restricted Subsidiaries will not be subject to the foregoing covenants.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, combination or merger, or any transfer, of all
or substantially all of the assets of the Company in accordance with Section
5.01 hereof in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such, conveyance, lease or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Notes with the same effect as if such surviving
entity had been named as such and that, in the event of conveyance, lease or
transfer, the conveyor, lessor or transferor will be released from the
provisions of this Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
"Event of Defaults" are:
(a) after the fifth anniversary of the Issue Date, the failure to pay
cash interest on any Notes on any Interest Payment Date occurring after the
fifth anniversary of the Issue Date in accordance with the terms of the
Notes, if the default continues for a period of 30 days;
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(b) after the fifth anniversary of the Issue Date, the failure to pay
the principal on any Notes when such principal becomes due and payable at
maturity, upon redemption or otherwise whether or not such payment shall be
prohibited by Article 10 hereof;
(c) a default in the observance or performance of any other covenant
or agreement contained herein (including the failure to make a payment to
purchase Notes tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer on the date specified for such payment in the applicable
offer to purchase, during the period that such failure would not constitute
a default pursuant to clause (b) above) if the default continues for a
period of 30 days after the Company receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or
the Holders of at least 25% of the outstanding principal amount of the
Notes (except in the case of a default with respect to Section 5.01 hereof,
which will constitute an Event of Default with such notice requirement but
without such passage of time requirement);
(d) after the fifth anniversary of the Issue Date, the failure to pay
at final stated maturity (giving effect to any applicable grace periods and
any extensions thereof) the principal amount of any Indebtedness of the
Company or any of its Significant Subsidiaries which failure continues for
at least 20 days, or a default under any Indebtedness of the Company or any
of its Significant Subsidiaries which default, by the terms of such
Indebtedness, results in the acceleration of such Indebtedness prior to its
final stated maturity, which acceleration remains uncured and unrescinded
for at least 20 days, if the aggregate principal amount of such
Indebtedness is $10.0 million or more at or the time of default;
(e) the Company or any of its Significant Subsidiaries:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors,
or
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case;
(ii) appoints a custodian of the Company or any of its
Significant Subsidiaries for all or substantially all of the property
of the Company or any of its Significant Subsidiaries; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries;
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and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (e) or (f) of Section 6.01 hereof with respect to the Company) occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare the principal of and accrued interest on
all the Notes to be due and payable immediately by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration" (the "ACCELERATION NOTICE"), and the same (i)
shall become immediately due and payable or (ii) if there are any amounts
outstanding under the New Credit Facility , shall become immediately due and
payable upon the first to occur of an acceleration under the New Credit Facility
or five Business Days after receipt by the Company and the Representative under
the New Credit Facility of such Acceleration Notice but only if such Event of
Default is then continuing. If an Event of Default specified in clause (e) or
(f) above with respect to the Company occurs and is continuing, then all unpaid
principal of, and premium, if any, and accrued and unpaid interest on all the
outstanding Notes shall IPSO FACTO become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances; and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (e) or (f) of Section 6.01 hereof, the Trustee shall have received an
Officer's Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Additional Interest, if any, on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an ex-
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isting Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of,
premium and Additional Interest, if any, or interest on, the Notes (including in
connection with an offer to purchase) (PROVIDED, HOWEVER, that the Holders of a
majority in aggregate principal amount at maturity of the then outstanding Notes
may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium and Additional
Interest, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
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SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal amount of, premium and Additional Interest, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
SECOND: to Holders of Notes for amounts due and unpaid on the Notes
for principal amount, premium and Additional Interest, if any, and
interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for principal amount, premium and
Additional Interest, if any and interest, respectively; and
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THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(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:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
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(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(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
(c), (e) and (f) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officer's Certificate or Opinion of Counsel. The Trustee may consult
with counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
(a) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(b) If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 30 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest on any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA 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 shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
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SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) or (g) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the
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then outstanding Notes may remove the Trustee by so notifying the Trustee and
the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, PROVIDED
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by
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federal or state authorities and that has a combined capital and surplus of at
least $100.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA 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 resolution set forth in an Officer's Certificate, at any time after December
1, 2003 but before December 1, 2005, elect to have either Section 8.02 or 8.03
hereof applied to all outstanding Notes upon compliance with the conditions set
forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders
of outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal amount of, premium, if any, and interest on such Notes when such
payments are due, (b) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8,
the Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
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SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15 and 4.16 hereof with respect to the outstanding Notes on
and after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Section 6.01(d) and hereof
shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably elect pursuant to Section 3.07
hereof to redeem the Notes on December 3, 2005 and must irrevocably deposit
with the Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal amount of, premium and Additional Interest, if any, and interest
on the outstanding Notes at December 3, 2005 pursuant to the terms of
Section 3.07 hereof;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
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(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Notes pursuant to this
Article 8 concurrently with such incurrence and the grant of a Lien to
secure such Indebtedness) or insofar as Sections 6.01(e) or 6.01(f) hereof
is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under the Indenture
(other than a Default or an Event of Default resulting from the borrowing
of funds to be applied to such deposit and the grant of any Lien securing
such borrowing) or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that
(A) the trust funds will not be subject to any rights of holders of Senior
Debt including, without limitation, those arising under this Indenture, and
(B) after the 90th day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company;
(h) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(i) the Company shall have paid or duly provided for payment of all
amounts then due to the Trustee pursuant to Section 7.07 hereof.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (b) above with respect to a Legal Defeasance need not be delivered if all
Notes not therefor delivered to the Trustee for cancellation (A) have become due
and payable, or (B) will become due and payable on the maturity date within one
year under arrangements satisfactory to the Trustee for giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
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SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"TRUSTEE") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal amount, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. SATISFACTION AND DISCHARGE
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights or registration of transfer or exchange of
the Notes, as expressly provided for in this Indenture) as to all outstanding
notes when (i) either (a) all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, pursuant to an optional redemption
notice or otherwise, and the Company has irrevocably deposited or caused to be
deposited with the Trustee funds in an amount sufficient to pay and discharge
the entire Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on the Notes
to the date of deposit together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be; (ii) the Company has paid all other sums payable
under this Indenture by the Company; and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel stating that all
conditions precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
SECTION 8.07. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal, premium, if any, or
interest on any Note and re-
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maining unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as a secured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.08. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
SECTION 8.09. SURVIVAL.
The Trustee's rights under this Article 8 shall survive termination of
this Indenture.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
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 of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 5 or
Article 11 hereof;
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(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(f) to provide for the issuance of Notes issued after the Issue Date
in accordance with the limitations set forth in this Indenture as of the
date hereof.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, this Indenture
(including Sections 3.09, 4.10 and 4.15 hereof) and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding voting as a single class (including
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.08 hereof shall determine which Notes are considered to be
"outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amend-
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ment, supplement or waiver. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such amended or supplemental Indenture or waiver. Subject to Sections
6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of
the Notes then outstanding voting as a single class may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount at maturity of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or have the effect of changing the fixed
maturity of any Note or alter or waive any of the provisions with respect
to the redemption of the Notes, other than provisions relating to Sections
3.09, 4.10 or 4.15 hereof;
(c) reduce the rate of or change or have the effect of changing the
time for payment of interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount at maturity of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes;
(g) waive a redemption payment with respect to any Note, other than a
payment required by Section 3.09 or 4.10;
(h) after the Company's obligation to purchase Notes arises
thereunder, amend, change or modify in any material respect the obligation
of the Company to make and consummate a Change of Control Offer in the
event of a Change of Control or modify any of the provisions or definitions
with respect thereto after a Change of Control has occurred;
(i) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Notes in a manner
which adversely affects the Holders; or
(j) make any change in the foregoing amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 12.04 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each Holder of the Notes, by its
acceptance thereof, likewise covenants and agrees, that all Notes shall be
issued subject to the provisions of this Article 10, and each Person holding any
Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all Obligations on the Notes by
the Company shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in cash
or Cash Equivalents of all Obligations on Senior Debt, including, without
limitation, the Company's obligations under the New Credit Facility; that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Debt, and that each holder of Senior Debt whether now
outstanding or hereafter created, incurred, assumed or
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guaranteed shall be deemed to have acquired Senior Debt in reliance upon the
covenants and provisions contained in this Indenture and the Notes.
SECTION 10.02. INTENTIONALLY OMITTED.
SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
the Notes, or for the acquisition of any of the Notes for cash or property or
otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of Senior Debt (PRO
RATA to such holders on the basis of the respective amounts of Senior Debt held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf
of the Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
has not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder when such
payment or distribution is prohibited by Section 10.03(a) hereof, such payment
or distribution shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt (PRO RATA to such holders on
the basis of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
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(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of the Senior Debt
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 10.03 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume the Company's
obligations hereunder in accordance with Article 5 hereof.
SECTION 10.04. DEFAULT ON DESIGNATED SENIOR DEBT.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Designated Senior
Debt, no payment of any kind or character shall be made by or on behalf of the
Company or any other Person on its or their behalf with respect to any
Obligations on the Notes or to acquire any of the Notes for cash or property or
otherwise. In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Debt, as such event of default is defined
in the instrument creating or evidencing such Designated Senior Debt, permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives notice of the event of default to the Trustee (a
"DEFAULT NOTICE"), then, unless and until all events of default have been cured
or waived or have ceased to exist or the Trustee receives notice thereof from
the Representative for the respective issue of Designated Senior Debt
terminating the Blockage Period (as defined below), during the 180 days after
the delivery of such Default Notice (the "BLOCKAGE PERIOD"), neither the Company
nor any other Person on its behalf shall (x) make any payment of any kind or
character with respect to any Obligations on the Notes or (y) acquire any of the
Notes for cash or property or otherwise. Notwithstanding anything herein to the
contrary, in no event will a Blockage Period extend beyond 180 days from the
date the payment on the Notes was due and only one such Blockage Period may be
commenced within any 360 consecutive days. No event of default which existed or
was continuing on the date of the commencement of any Blockage Period with
respect to the Designated Senior Debt shall be, or be made, the basis for
commencement of a second Blockage Period by the Representative of such
Designated Senior Debt whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action,
or any breach of any financial covenants for a period commencing after the date
of commencement of such Blockage Period that, in either case, would give rise to
an event of default pursuant to any provisions under which an event of default
previously existed or was continuing shall constitute a new event of default for
this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.04(a) hereof, such payment shall be held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior Debt (PRO RATA
to such holders on the basis of the respective amount of Senior Debt held by
such holders) or their respective Representatives, as their respective interests
may appear. The Trustee shall be entitled to rely on information regarding
amounts then due and owing on the Senior Debt, if any, received from the holders
of Senior Debt (or their Representatives) or, if such information is not
received from such holders or their Representatives, from the Company and only
amounts included in the information provided to the Trustee shall be paid to the
holders of Senior Debt.
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Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; PROVIDED that all Senior Debt thereafter due or declared to be due
shall first be paid in full in cash or Cash Equivalents before the Holders are
entitled to receive any payment of any kind or character with respect to
Obligations on the Notes.
SECTION 10.05. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Debt of the acceleration.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of
any Obligations with respect to the Notes at a time when such payment is
prohibited by Section 10.03 or 10.04 hereof, such payment shall be held by the
Trustee or such Holder, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in cash or Cash Equivalents in accordance with
their terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
SECTION 10.07. NOTICE BY COMPANY.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article 10 (although the failure to give any such notice shall not affect the
subordination provisions of this Article 10). Regardless of anything to the
contrary contained in this Article 10 or elsewhere in this Indenture, the
Trustee shall not be charged with knowledge of the existence of any default or
event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing from the Company, or from a
holder of Senior Debt or a Representative therefor, together with proof
satisfactory to the Trustee of such holding of Senior Debt or of the authority
of such Representative, and, prior to the receipt of any such written notice,
the Trustee shall be entitled to assume that no such facts exist.
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SECTION 10.08. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders of the Notes shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders by virtue of this Article 10 which otherwise
would have been made to the Holders shall, as between the Company and the
Holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Debt, it being understood that the provisions of this Article 10
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior Debt,
on the other hand.
SECTION 10.09. RELATIVE RIGHTS.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of the
Company other than the holders of the Senior Debt, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 10 of the holders of Senior Debt in respect
of cash, property or securities of the Company received upon the exercise of any
such remedy. Upon any payment or distribution of assets or securities of the
Company referred to in this Article 10, the Trustee, subject to the provisions
of Sections 7.01 and 7.02 hereof, and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which any
liquidation, dissolution, winding-up or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee or
agent or other Person making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 10. Nothing in this Article 10 shall apply to the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Debt (or a trustee
on behalf of, or other representative of, such holder) to establish that such
notice has been given by a holder of such Senior Debt or a trustee or
representative on behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article 10, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
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SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
(a) No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act by any such holder, or by any non-compliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of subsection (a) of this Section
10.10, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article 10 or the
obligations hereunder of the Holders of the Notes to the holders of Senior Debt,
do any one or more of the following: (1) change the manner, place, terms or
time of payment of, or renew or alter, Senior Debt or any instrument evidencing
the same or any agreement under which Senior Debt is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (3) release any Person liable in any manner for
the collection or payment of Senior Debt; and (4) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders of Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article 10 (although the receipt of
such payment shall otherwise be subject to the applicable provisions of this
Article 10). Only the Company or a Representative may give the notice. Nothing
in this Article 10 shall impair the claims of, or payments to, the Trustee under
or pursuant to Section 7.07 hereof. Nothing in this Section 10.12 is intended
to or shall relieve any Holder of Notes from the obligations imposed under
Section 10.06 with respect to other distributions received in violation of the
provisions hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.
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SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of the Notes by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effect the subordination
provisions contained in this Article 10, and appoints the Trustee such Holder's
attorney-in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of the Company tending towards liquidation or
reorganization of the business and assets of the Company, the immediate filing
of a claim for the unpaid balance of such Holder's Notes in the form required in
said proceedings and cause said claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof prior to 30 days before the expiration of the
time to file such claim or claims, then any of the holders of the Senior Debt or
their Representative is hereby authorized to file an appropriate claim for and
on behalf of the Holders of said Notes. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Debt or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Senior Debt or their Representative to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 10.14. AMENDMENTS.
The provisions of this Article 10 shall not be amended or modified
without the written consent of the majority of the lenders under the New Credit
Facility.
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 shall 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:
TransDigm Holding Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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with copies to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to the Trustee:
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
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)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA 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 shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
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:
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(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall 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
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall 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)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has or
they have made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 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, shall 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 by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL 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
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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.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
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 shall in
no way modify or restrict any of the terms or provisions hereof.
[INDENTURE SIGNATURE PAGES(S) FOLLOW]
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[INDENTURE SIGNATURE PAGES(S)]
Dated as of December 3, 1998
TRANSDIGM HOLDING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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