EXHIBIT 4.1
RAYOVAC CORPORATION
7 3/8% SENIOR SUBORDINATED NOTES DUE 2015
___________________________________
INDENTURE
Dated as of February 7, 2005
___________________________________
U.S. Bank National Association
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture Act Indenture
Section Section
310(a)(1)............................................................ 7.10
(a)(2).......................................................... 7.10
(a)(5).......................................................... 7.10
(b)............................................................. 7.10
311(a)............................................................... 7.11
(b)............................................................. 7.11
312(a)............................................................... 2.05
(b)............................................................. 12.03
(c)............................................................. 12.03
313(a)............................................................... 7.06
(b)(2).......................................................... 7.06
(c)............................................................. 7.06
12.02
(d)............................................................. 7.06
314(a)............................................................... 4.03
12.05
(c)............................................................. 12.04
(e)............................................................. 12.05
315(a)............................................................... 7.01(b)
(b)............................................................. 7.05
(c)............................................................. 7.01(a)
(d)............................................................. 7.01(c)
(e)............................................................. 6.11
316(a)(last sentence)................................................ 2.09
(a)(1)(A)....................................................... 6.05
(a)(1)(B)....................................................... 6.04
(b)............................................................. 6.07
(c)............................................................. 6.15
317(a)(1)............................................................ 6.08
(b)............................................................. 6.07
(c)............................................................. 2.04
318(a)............................................................... 12.01
____________________
* This Cross-Reference Table is not part of this Indenture.
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.................................................................1
Section 1.02. Other Definitions..........................................................22
Section 1.03. Incorporation by Reference of Trust Indenture Act..........................22
Section 1.04. Rules of Construction......................................................23
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating............................................................24
Section 2.02. Execution and Authentication...............................................25
Section 2.03. Registrar and Paying Agent.................................................25
Section 2.04. Paying Agent to Hold Money in Trust........................................26
Section 2.05. Holder Lists...............................................................26
Section 2.06. Transfer and Exchange......................................................26
Section 2.07. Replacement Notes..........................................................39
Section 2.08. Outstanding Notes..........................................................39
Section 2.09. Treasury Notes.............................................................40
Section 2.10. Certificated Notes.........................................................40
Section 2.11. Temporary Notes............................................................41
Section 2.12. Cancellation...............................................................41
Section 2.13. Defaulted Interest.........................................................41
Section 2.14. ▇▇▇▇▇ and ISIN Numbers.....................................................42
Section 2.15. Deposit of Moneys..........................................................42
Section 2.16. Computation of Interest....................................................42
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.........................................................42
Section 3.02. Selection of Notes to Be Redeemed..........................................42
Section 3.03. Notice of Redemption.......................................................43
Section 3.04. Effect of Notice of Redemption.............................................44
Section 3.05. Deposit of Redemption Price................................................44
Section 3.06. Notes Redeemed in Part.....................................................44
Section 3.07. Optional Redemption........................................................44
Section 3.08. Mandatory Redemption.......................................................45
Section 3.09. Offer to Purchase..........................................................45
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes...........................................................47
Section 4.02. Maintenance of Office or Agency............................................47
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Section 4.03. Reports....................................................................47
Section 4.04. Compliance Certificate.....................................................48
Section 4.05. Taxes .....................................................................49
Section 4.06. Stay, Extension and Usury Laws.............................................49
Section 4.07. Restricted Payments........................................................49
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries..52
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.................53
Section 4.10. Asset Sales................................................................56
Section 4.11. Transactions with Affiliates...............................................57
Section 4.12. Liens .....................................................................59
Section 4.13. Corporate Existence........................................................59
Section 4.14. Offer to Repurchase upon Change of Control.................................59
Section 4.15. Limitation on Senior Subordinated Debt.....................................60
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries....................60
Section 4.17. Payments for Consent.......................................................62
Section 4.18. Business Activities........................................................62
Section 4.19. Limitation on Issuances and Sales of Equity Interests in Restricted
Subsidiaries...............................................................62
Section 4.20. Additional Note Guarantees.................................................63
ARTICLE 5
SUCCESSORS
Section 5.01. ▇▇▇▇▇▇, Consolidation or Sale of Assets....................................64
Section 5.02. Successor Corporation Substituted..........................................65
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..........................................................65
Section 6.02. Acceleration...............................................................67
Section 6.03. Other Remedies.............................................................68
Section 6.04. Waiver of Past Defaults....................................................68
Section 6.05. Control by Majority........................................................68
Section 6.06. Limitation on Suits........................................................69
Section 6.07. Rights of Holders of Notes to Receive Payment..............................69
Section 6.08. Collection Suit by Trustee.................................................69
Section 6.09. Trustee May File Proofs of Claim...........................................69
Section 6.10. Priorities.................................................................70
Section 6.11. Undertaking for Costs......................................................70
Section 6.12. Restoration of Rights and Remedies.........................................70
Section 6.13. Rights and Remedies Cumulative.............................................71
Section 6.14. Delay or Omission Not Waiver...............................................71
Section 6.15. Record Date................................................................71
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ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee..........................................................71
Section 7.02. Rights of Trustee..........................................................72
Section 7.03. Individual Rights of Trustee...............................................73
Section 7.04. Trustee's Disclaimer.......................................................73
Section 7.05. Notice of Defaults.........................................................73
Section 7.06. Reports by Trustee to the Holders of the Notes.............................74
Section 7.07. Compensation and Indemnity.................................................74
Section 7.08. Replacement of Trustee.....................................................75
Section 7.09. Successor Trustee by ▇▇▇▇▇▇, Etc...........................................76
Section 7.10. Eligibility; Disqualification..............................................76
Section 7.11. Preferential Collection of Claims Against Company..........................76
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND DISCHARGE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance...................76
Section 8.02. Legal Defeasance and Discharge.............................................77
Section 8.03. Covenant Defeasance........................................................77
Section 8.04. Conditions to Legal Defeasance or Covenant Defeasance......................78
Section 8.05. Satisfaction and Discharge of Indenture....................................79
Section 8.06. Survival of Certain Obligations............................................80
Section 8.07. Acknowledgment of Discharge by Trustee.....................................80
Section 8.08. Deposited Money and Cash Equivalents to Be Held in Trust; Other
Miscellaneous Provisions...................................................80
Section 8.09. Repayment to Company.......................................................81
Section 8.10. Indemnity for Government Securities........................................81
Section 8.11. Reinstatement..............................................................81
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes........................................81
Section 9.02. With Consent of Holders of Notes...........................................82
Section 9.03. Compliance with Trust Indenture Act........................................84
Section 9.04. Revocation and Effect of Consents..........................................84
Section 9.05. Notation on or Exchange of Notes...........................................84
Section 9.06. Trustee to Sign Amendments, Etc............................................84
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate...................................................85
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Section 10.02. Liquidation; Dissolution; Bankruptcy.......................................85
Section 10.03. Default on Designated Senior Debt..........................................85
Section 10.04. Acceleration of Securities.................................................86
Section 10.05. When Distribution Must Be Paid Over........................................86
Section 10.06. Notice by the Company......................................................87
Section 10.07. Subrogation................................................................87
Section 10.08. Relative Rights............................................................87
Section 10.09. Subordination May Not Be Impaired by the Company...........................87
Section 10.10. Distribution or Notice to Representative...................................87
Section 10.11. Rights of Trustee and Paying Agent.........................................88
Section 10.12. Authorization to Effect Subordination......................................88
ARTICLE 11
NOTE GUARANTEES
Section 11.01. Guarantee..................................................................88
Section 11.02. Subordination of Note Guarantee............................................89
Section 11.03. Limitation on Guarantor Liability..........................................90
Section 11.04. Execution and Delivery of Note Guarantee...................................90
Section 11.05. Releases Following Sale of Assets..........................................90
Section 11.06. Additional Guarantors......................................................91
Section 11.07. Notation Not Required......................................................91
Section 11.08. Successors and Assigns.....................................................91
Section 11.09. No Waiver..................................................................91
Section 11.10. Modification...............................................................91
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls...............................................92
Section 12.02. Notices....................................................................92
Section 12.03. Communication by Holders of Notes with Other Holders of Notes..............93
Section 12.04. Certificate and Opinion as to Conditions Precedent.........................93
Section 12.05. Statements Required in Certificate or Opinion..............................93
Section 12.06. Rules by Trustee and Agents................................................94
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders...94
Section 12.08. Governing Law..............................................................94
Section 12.09. No Adverse Interpretation of Other Agreements..............................94
Section 12.10. Successors.................................................................94
Section 12.11. Severability...............................................................94
Section 12.12. Counterpart Originals......................................................94
Section 12.13. Table of Contents, Headings, Etc...........................................95
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTE GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
Schedule I GUARANTORS
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INDENTURE dated as of February 7, 2005 among Rayovac Corporation, a
Wisconsin corporation (the "Company"), the Guarantors listed in Schedule I
hereto and U.S. Bank National Association, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and proportionate benefit of the
Holders of the 7 3/8% Senior Subordinated Notes due 2015 and the Exchange Notes
(as defined herein).
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a global note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee that shall be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(a) Indebtedness of any other Person existing at the time such other
Person is merged with or into, or becomes a Subsidiary of, such specified
Person, whether or not such Indebtedness is incurred in connection with,
or in contemplation of, such other Person merging with or into, or
becoming a Subsidiary of, such specified Person; and
(b) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Additional Notes" means an unlimited maximum aggregate principal
amount of Notes (other than the Notes issued on the Issue Date) issued under
this Indenture in accordance with Sections 2.02 and subject to Section 4.09
hereof.
"Affiliate" of any specified Person means (a) any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any executive
officer or director of such specified Person. For purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of
10% or more of the Voting Stock of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by" and
"under common control with" shall have correlative meanings; provided further
that each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ mbH & Co.
Vermietungs-KG, Mannheim and ▇▇▇▇▇▇ Grundstucksvermietungsgesellschaft mbH &
Co. Object Dischingen KG, Dusseldorf, shall not be deemed Affiliates of the
Company or any of its Restricted Subsidiaries solely by
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virtue of the beneficial ownership by the Company or its Restricted
Subsidiaries of up to 20% of the Voting Stock of each entity.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(a) the sale, lease, conveyance or other disposition of any property
or assets; provided that the sale, conveyance or other disposition of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries, taken as a whole, shall be governed by the provisions of
Section 4.14 and/or Section 5.01 and not by the provisions of Section 4.10;
and
(b) the issuance of Equity Interests by any of the Company's
Restricted Subsidiaries or the sale by the Company or any Restricted
Subsidiary of Equity Interests in any of its Subsidiaries.
Notwithstanding the preceding, the following items shall be
deemed not to be Asset Sales:
(i) any single transaction or series of related transactions that
involves assets having a fair market value of less than $10.0 million;
(ii) a transfer of assets between or among the Company and its
Restricted Subsidiaries;
(iii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary of the Company;
(iv) the sale, lease or other disposition of equipment, inventory,
accounts receivable or other assets in the ordinary course of business;
(v) the sale or other disposition of Cash Equivalents;
(vi) a Restricted Payment that is permitted by Section 4.07;
(vii) any sale or disposition of any property or equipment that has
become damaged, worn out, obsolete or otherwise unsuitable or no longer
required for use in the ordinary course of the business of the Company or
its Restricted Subsidiaries;
(viii) the licensing of intellectual property in the ordinary course
of business;
(ix) any sale or other disposition deemed to occur with creating or
granting a Lien not otherwise prohibited by this Indenture; and
2
(x) upon the termination of the VARTA joint venture with VARTA AG, the
sale, transfer or other disposition of the Equity Interests in FinanceCo
(as defined in the VARTA Joint Venture Agreement) and the forgiveness of
any loans owed by VARTA AG, in each case pursuant to, and in accordance
with the terms of, the VARTA Joint Venture Agreement as in effect on the
Issue Date.
"Bankruptcy Law" means any law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law, including, without
limitation, the state bankruptcy law of the Company or the Guarantor's
jurisdiction and title 11, United States Bankruptcy Code of 1978, as amended.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in
Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have
beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned"
shall have a corresponding meaning.
"Board of Directors" means (a) with respect to a corporation, the
board of directors of the corporation; (b) with respect to a partnership, the
Board of Directors of the general partner of the partnership; and (c) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary to have been duly adopted by the Board of Directors and to
be in full force and effect on the date of such certification.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Calculation Date" has the meaning set forth in the definition of
Fixed Charge Coverage Ratio.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, corporate
stock; (b) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and (d) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
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"Cash Equivalents" means (a) United States dollars, Euros and British
Pounds Sterling; (b) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than six months from
the date of acquisition; (c) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and overnight
bank deposits, in each case, with any domestic commercial bank having capital
and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of "B"
or better; (d) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (b) and (c) above
entered into with any financial institution meeting the qualifications
specified in clause (c) above; (e) commercial paper having the highest rating
obtainable from ▇▇▇▇▇'▇ or S&P and in each case maturing within nine months
after the date of acquisition; (f) 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 having the highest ratings
obtainable from ▇▇▇▇▇'▇ or S&P and maturing within six months from the date of
acquisition thereof; (g) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (a) through (f)
of this definition; and (h) in the case of a Foreign Subsidiary, local currency
held by such Foreign Subsidiary from time to time in the ordinary course of
business and Euros and British Pounds Sterling.
"Certificated Note" means a certificated note in registered
certificated form in the name of the Holder thereof and issued in accordance
with Section 2.06 hereof, in the form of Exhibit A hereto, except that such
Note shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Change of Control" means the occurrence of any of the following: (a)
the direct or indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries, taken as a whole, to any "person" (as
that term is used in Section 13(d)(3) of the Exchange Act); (b) the adoption of
a plan relating to the liquidation or dissolution of the Company; (c) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the ultimate Beneficial Owner, directly or indirectly, of
50% or more of the voting power of the Voting Stock of the Company; (d) the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors; or (e) the Company consolidates with, or
merges with or into, any Person, or any Person consolidates with, or merges
with or into the Company, in any such event pursuant to a transaction in which
any of the outstanding Voting Stock of the Company or such other Person is
converted into or exchanged for cash, securities or other property, other than
any such transaction where (i) the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged for Voting
Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such
issuance) and (ii) immediately after such transaction, no "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act)
becomes, directly or indirectly, the ultimate Beneficial Owner of 50% or more
of the voting power of the Voting Stock of the surviving or transferee Person.
4
"Clearstream" means Clearstream Banking, societe anonyme.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period
plus, without duplication: (a) provision for taxes based on income or profits
of such Person and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such Consolidated Net
Income; plus (b) Fixed Charges of such Person and its Restricted Subsidiaries
for such period, to the extent that any such Fixed Charges were deducted in
computing such Consolidated Net Income; plus (c) depreciation, amortization
(including amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and
other non-cash expenses (excluding any charges referred to in clauses (d), (e),
(f) and (g) without giving effect to the provisos, and any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that
was paid in a prior period) of such Person and its Restricted Subsidiaries for
such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income; plus
(d) restructuring and related charges and other non-recurring charges incurred
by the Company in the fiscal year ended September 30, 2004, to the extent such
charges were deducted in computing Consolidated Net Income for such period;
provided that the maximum aggregate amount of such charges shall not exceed
$25.0 million; plus (e) for any period prior to the acquisition of Microlite,
any operating losses and non-recurring charges incurred in such period by
Microlite, to the extent such operating losses and non-recurring charges were
reflected in computing Consolidated Net Income for such period; provided that
the maximum aggregate amount of such operating losses and charges shall not
exceed $8.1 million; plus (f) for any period prior to the acquisition of
United, restructuring and related charges incurred in such period by United
related to its acquisition of United Pet Group, Inc. or The Nu-Gro Company, to
the extent such charges were deducted in computing Consolidated Net Income for
such period; provided that the maximum aggregate amount of such charges shall
not exceed $31.1 million; plus (g) restructuring and related charges related to
the acquisition of United and any other acquisition, incurred during any period
after September 30, 2004, and prior to September 30, 2008, to the extent such
charges were deducted in computing Consolidated Net Income for such period;
provided that the maximum aggregate amount of such charges shall not exceed
$100.0 million; minus (h) non-cash items increasing such Consolidated Net
Income for such period, other than the accrual of revenue consistent with past
practice, in each case, on a consolidated basis and determined in accordance
with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
expenses of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Company (A) in
the same proportion that the Net Income of such Restricted Subsidiary was added
to compute such Consolidated Net Income of the Company and (B) only to the
extent that a corresponding amount would be permitted at the date of
determination to be dividended or distributed to the Company by such Restricted
Subsidiary without prior governmental approval (that has not been obtained),
and without direct or indirect restriction pursuant to the terms of its charter
and all agreements, instruments, judgments, decrees, orders, statutes, rules
and governmental regulations applicable to that Subsidiary or its stockholders.
5
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:
(a) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends
or distributions paid in cash to the specified Person or a Restricted
Subsidiary thereof;
(b) the Net Income of any Restricted Subsidiary shall be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of
the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its equityholders;
(c) the Net Income of any Person acquired during the specified period
for any period prior to the date of such acquisition shall be excluded;
(d) the cumulative effect of a change in accounting principles shall
be excluded; and
(e) notwithstanding clause (a) above, the Net Income (but not loss) of
any Unrestricted Subsidiary shall be excluded, whether or not distributed
to the specified Person or one of its Subsidiaries.
"Consolidated Net Tangible Assets" of any Person means, as of any
date, the amount which, in accordance with GAAP, would be set forth under the
caption "Total Assets" (or any like caption) on a consolidated balance sheet of
such Person and its Restricted Subsidiaries, as of the end of the most recently
ended fiscal quarter for which internal financial statements are available,
less (a) all intangible assets, including, without limitation, goodwill,
organization costs, patents, trademarks, copyrights, franchises, and research
and development costs and (b) current liabilities.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (a) was a member of such
Board of Directors on the Issue Date; or (b) was nominated for election or
elected to such Board of Directors 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 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Agreement" means that certain Credit Agreement, dated the
date hereof, by and among the Company, VARTA, Bank of America, N.A., as
Administrative Agent, and the other lenders named therein, including any
related notes, Guarantees, collateral documents,
6
instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or refinanced from
time to time, regardless of whether such amendment, modification, renewal,
refunding, replacement or refinancing is with the same financial institutions
or otherwise.
"Credit Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale
of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in
each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.
"Designated Senior Debt" means:
(a) any Indebtedness outstanding under the Credit Agreement; and
(b) after payment in full of all Obligations under the Credit
Agreement, any other Senior Debt permitted under this Indenture the
principal amount of which is $50.0 million or more and that has been
designated by the Company as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is one year after the
date on which the Notes mature, except to the extent such Capital Stock is
solely redeemable with, or solely exchangeable for, any Equity Interests of the
Company that are not Disqualified Stock. Notwithstanding the preceding sentence,
any Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07. The
term "Disqualified Stock" shall also include any options, warrants or other
rights that are convertible into Disqualified Stock or that are
7
redeemable at the option of the holder, or required to be redeemed, prior
to the date that is one year after the date on which the Notes mature.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
other than a Restricted Subsidiary that is (a) a "controlled foreign
corporation" under Section 957 of the Internal Revenue Code or (b) a Subsidiary
of any such controlled foreign corporation.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a public or private offer and sale of common
stock (other than Disqualified Stock) of the Company (other than common stock
sold to a Subsidiary of the Company).
"Euroclear" means Euroclear S.A./N.V., as operator of the Euroclear
System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer in
accordance with Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement or any similar agreement with respect to any Additional Notes.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement or any similar agreement with respect to any
Additional Notes.
"Existing Indebtedness" means the aggregate principal amount of
Indebtedness of the Company and its Subsidiaries (other than Indebtedness under
the Credit Agreement) in existence on the Issue Date after giving effect to the
acquisition of United and, the application of the proceeds of the Notes and any
Indebtedness under the Credit Agreement borrowed on the Issue Date, until such
amounts are repaid.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Board of Directors, whose determination
shall be conclusive if evidenced by a Board Resolution.
"Fixed Charge Coverage Ratio" means, with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems any Indebtedness or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase or redemption of
8
Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(a) acquisitions and dispositions of business entities or property and
assets constituting a division or line of business of any Person that have
been made by the specified Person or any of its Restricted Subsidiaries,
including through mergers or consolidations and including any related
financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be given pro forma effect as if they had occurred on the first day of
the four-quarter reference period and Consolidated Cash Flow for such
reference period shall be calculated on a pro forma basis in accordance
with Regulation S-X under the Securities Act, but without giving effect to
clause (c) of the proviso set forth in the definition of Consolidated Net
Income; (b) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, shall be excluded; (c)
the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP shall be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges shall not be obligations of
the specified Person or any of its Subsidiaries following the Calculation
Date; and (d) consolidated interest expense attributable to interest on any
Indebtedness (whether existing or being incurred) computed on a pro forma
basis and bearing a floating interest rate shall be computed as if the rate
in effect on the Calculation Date (taking into account any interest rate
option, swap, cap or similar agreement applicable to such Indebtedness if
such agreement has a remaining term in excess of 12 months or, if shorter,
at least equal to the remaining term of such Indebtedness) had been the
applicable rate for the entire period.
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of (a) the consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued, including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made, received or accrued in
connection with Hedging Obligations; plus (b) the consolidated interest of such
Person and its Restricted Subsidiaries that was capitalized during such period;
plus (c) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries, whether or
not such Guarantee or Lien is called upon; plus (d) the product of (i) all
dividends, whether paid or accrued and whether or not in cash, on any series of
Disqualified Stock or preferred stock of such Person or any of its Restricted
Subsidiaries, other than (A) dividends on Equity Interests payable solely in
Equity Interests of the Company (other than Disqualified Stock) or (B) dividends
to the Company or a Restricted Subsidiary of the Company, times (ii) a fraction,
the numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in
9
accordance with GAAP; provided that Fixed Charges shall not include any
interest expense of, or dividends paid by, VARTA to VARTA AG to the extent that
the Company or a Restricted Subsidiary of the Company receives interest or
dividends in cash from VARTA AG in connection with the VARTA Joint Venture
Agreement as in effect on the Issue Date.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
other than a Domestic Subsidiary.
"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, the opinions and pronouncements of
the Public Company Accounting Oversight Board and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, issued in accordance
with certain sections of this Indenture and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means, as to any Person, a guarantee other than by
endorsement of negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner including, without limitation, by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness of
another Person.
"Guarantors" means:
(a) each direct or indirect Domestic Subsidiary of the Company on the
Issue Date; and
(b) any other subsidiary that executes a Note Guarantee in accordance
with the provisions of this Indenture;
and their respective successors and assigns until released from their
obligations under their Note Guarantees and this Indenture in accordance with
the terms of this Indenture.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and other agreements or
arrangements designed for the purpose of fixing, hedging or swapping interest
rate risk; (b) commodity swap agreements, commodity option
10
agreements, forward contracts and other agreements or arrangements designed for
the purpose of fixing, hedging or swapping commodity price risk; and (c)
foreign exchange contracts, currency swap agreements and other agreements or
arrangements designed for the purpose of fixing, hedging or swapping foreign
currency exchange rate risk.
"Holder" means a Person in whose name a Note is registered.
"incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become directly or indirectly liable for
or with respect to, or become responsible for, the payment of, contingently or
otherwise, such Indebtedness; provided that (a) any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Company
shall be deemed to be incurred by such Restricted Subsidiary at the time it
becomes a Restricted Subsidiary of the Company; and (b) neither the accrual of
interest nor the accretion of original issue discount nor the payment of
interest in the form of additional Indebtedness with the same terms and the
payment of dividends on Disqualified Stock in the form of additional shares of
the same class of Disqualified Stock (to the extent provided for when the
Indebtedness or Disqualified Stock on which such interest or dividend is paid
was originally issued) shall be considered an incurrence of Indebtedness;
provided that in each case the amount thereof is for all other purposes
included in the Fixed Charges and Indebtedness of the Company or its Restricted
Subsidiary as accrued.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof),
but excluding obligations with respect to letters of credit (including
trade letters of credit) securing obligations entered into in the
ordinary course of business of such Person to the extent such letters
of credit are not drawn upon or, if drawn upon, to the extent such
drawing is reimbursed no later than the fifth Business Day following
receipt by such Person of a demand for reimbursement);
(c) in respect of banker's acceptances;
(d) in respect of Capital Lease Obligations;
(e) in respect of the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an
accrued expense or trade payable;
(f) representing Hedging Obligations, other than Hedging
Obligations that are incurred in the ordinary course of business for
the purpose of fixing, hedging or swapping interest rate, commodity
price or foreign currency exchange rate risk (or to reverse or amend
any such agreements previously made for such purposes), and not for
speculative purposes, and that do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations
in interest rates, commodity prices or foreign
11
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder; or
(g) representing Disqualified Stock valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued
dividends;
if and to the extent that any of the preceding items (other than letters of
credit and Hedging Obligations) would appear as liability upon a balance sheet
of the specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes (x) all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person), provided that the amount of such Indebtedness shall be
the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness, and (y) to the extent
not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified 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 Stock, such fair market value shall be determined in
good faith by the Board of Directors of the issuer of such Disqualified Stock.
The amount of any Indebtedness outstanding as of any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the
obligation, and shall be:
(A) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(B) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness;
provided that Indebtedness shall not include:
(1) any liability for federal, state, local or other taxes;
(2) performance, surety or appeal bonds provided in the ordinary
course of business; or
(3) agreements providing for indemnification, adjustment of
purchase price or similar obligations, or Guarantees or letters of
credit, surety bonds or performance bonds securing any obligations of
the Company or any of its Restricted Subsidiaries pursuant to such
agreements, in any case incurred in connection with the disposition of
any business, assets or Restricted Subsidiary (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), so long as the principal amount does not
exceed the gross proceeds actually received by the Company or any
Restricted Subsidiary in connection with such disposition.
12
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest Payment Date" means February 1 and August 1 of each year
to Stated Maturity.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates)
in the forms of loans or other extensions of credit (including Guarantees,
but excluding advances to customers or suppliers in the ordinary course of
business that are, in conformity with GAAP, recorded as accounts
receivable, prepaid expenses or deposits on the balance sheet of the
Company or its Restricted Subsidiaries and endorsements for collection or
deposit arising in the ordinary course of business), advances (excluding
commission, travel, payroll and similar advances to officers and employees
made consistent with past practices), capital contributions (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), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells
or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to any
such sale or disposition, such Person is no longer a 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 Investment in such Restricted Subsidiary not sold or disposed of in an
amount determined as provided in Section 4.07. The acquisition by the
Company or any Restricted Subsidiary of the Company of a Person that holds
an Investment in a third Person shall be deemed to be an Investment by the
Company or such Restricted Subsidiary in such third Person only if such
Investment was made in contemplation of, or in connection with, the
acquisition of such Person by the Company or such Restricted Subsidiary and
the amount of any such Investment shall be determined as provided in the
final paragraph of Section 4.07.
"Issue Date" means the date on which $700.0 million in aggregate
principal amount of the Notes were originally issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
commercial banks in The City of New York or at a place of payment are
authorized or required 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 on such payment shall accrue 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.
13
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
"Liquidated Damages" means the additional amounts (if any) payable
by the Company in the event of a Registration Default under, and as defined
in, the Registration Rights Agreement.
"Maturity" means, with respect to any Indebtedness, the date on
which any principal of such Indebtedness becomes due and payable as therein
or herein provided, whether at the Stated Maturity with respect to such
principal or by declaration of acceleration, call for redemption or
purchase or otherwise.
"Microlite" means Microlite S.A. and its successors or assigns.
"Microlite Purchase Agreement" means the Share Purchase Agreement
by and among the Company, ROV Holding, Inc. and the shareholders of
Microlite dated February 21, 2004.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
to the rating agency business thereof.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however,
(a) any gain or loss, together with any related provision for taxes on such
gain or loss, realized in connection with (i) any sale of assets outside
the ordinary course of business of such Person; or (ii) the disposition of
any securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and (b) any extraordinary gain or loss, together with any
related provision for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds, including
payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not the interest component, thereof)
received by the Company or any of its Restricted Subsidiaries in respect of
any Asset Sale (including, without limitation, any cash received upon the
sale or other disposition of any non-cash consideration received in any
Asset Sale), net of (a) the direct costs relating to such Asset Sale,
including, without limitation, legal, accounting and investment banking
fees, and sales commissions, and any relocation expenses incurred as a
result thereof; (b) taxes paid or payable as a result thereof, in each
case, after taking into account any available tax credits or deductions
arising therefrom and any tax sharing arrangements in connection therewith;
(c) amounts required to be applied to the repayment of Indebtedness or
other liabilities, secured by a Lien on the asset or assets that were the
subject of such Asset Sale, or required to be paid as a result of such
sale; and (d) any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
14
"Ningbo Baowang" means Ningbo Baowang Battery Company, Ltd. and
its successors or assigns.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by each Guarantor of the
Company's payment obligations under this Indenture and on the Notes,
executed pursuant to this Indenture.
"Notes" means the 7 3/8% Senior Subordinated Notes due 2015 of the
Company issued on the Issue Date, the Exchange Notes and the Additional
Notes. The Notes shall be treated as a single class for all purposes under
this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on behalf of
the Company by two Officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the
treasurer, or the principal accounting officer of the Company, that meets
the requirements of Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel that
meets the requirements of Section 12.05 hereof. The counsel may be an
employee of or counsel to the Company, any subsidiary of the Company or the
Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust
Company, shall include Euroclear and Clearstream).
"Permitted Business" means any business conducted or proposed to
be conducted by the Company and its Restricted Subsidiaries on the Issue
Date and other businesses similar or reasonably related, ancillary or
incidental thereto or reasonable extensions thereof.
"Permitted Investments" means:
(a) any Investment in the Company or in a Restricted Subsidiary
of the Company;
(b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment:
15
(i) such Person becomes a Restricted Subsidiary of the
Company; or
(ii) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets
to, or is liquidated into, the Company or a Restricted Subsidiary
of the Company;
(d) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10;
(e) Investments to the extent acquired in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the
Company;
(f) Hedging Obligations that are incurred in the ordinary course
of business for the purpose of fixing, hedging or swapping interest
rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such
purposes), and not for speculative purposes, and that do not increase
the Indebtedness of the obligor outstanding at any time other than as a
result of fluctuations in interest rates, commodity prices or foreign
currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(g) stock, obligations or securities received in satisfaction of
judgments;
(h) Investments in securities of trade debtors 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
debtors or customers or in compromise or resolution of litigation,
arbitration or other disputes with Persons who are not Affiliates; and
(i) other Investments in any Person that is not an Affiliate of
the Company (other than a Restricted Subsidiary) having an aggregate
fair market value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (i)
since the Issue Date, not to exceed $30.0 million.
"Permitted Junior Securities" means (a) Equity Interests in the
Company or any Guarantor or any other business entity provided for by a plan of
reorganization; and (b) debt securities of the Company or any Guarantor or any
other business entity provided for by a plan of reorganization that are
subordinated to the payment of all Senior Debt and any debt securities issued
in exchange for Senior Debt to substantially the same extent as, or to a
greater extent than, the Notes and the Note Guarantees are subordinated to
Senior Debt under this Indenture.
"Permitted Liens" means:
(a) Liens on the assets of the Company and any Guarantor securing
Senior Debt that was permitted by the terms of this Indenture to be
incurred;
(b) Liens in favor of the Company or any Restricted Subsidiary;
16
(c) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company; provided that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with
the Company or the Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such acquisition and
do not extend to any property other than the property so acquired by the
Company or the Restricted Subsidiary;
(e) Liens existing on the Issue Date;
(f) Liens securing Permitted Refinancing Indebtedness; provided that
such Liens do not extend to any property or assets other than the property
or assets that secure the Indebtedness being refinanced;
(g) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $25.0 million at any one time outstanding; and
(h) Liens on the assets of a Foreign Subsidiary securing Indebtedness
of a Foreign Subsidiary that was permitted by the terms of the Indenture to
be incurred.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:
(a) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest thereon
and the amount of any reasonably determined premium necessary to accomplish
such refinancing and such reasonable expenses incurred in connection
therewith);
(b) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(c) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes or
the Note Guarantees, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the
Holders of Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
17
(d) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is pari passu in right of payment with the Notes or
any Note Guarantees, such Permitted Refinancing Indebtedness is pari passu
with, or subordinated in right of payment to, the Notes or such Note
Guarantees; and
(e) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"preferred stock" means, with respect to any Person, any Capital Stock
of such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemption upon liquidation.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued hereunder except where otherwise
permitted by this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Record Date" for the interest payable on any Interest Payment Date
means March 15 or September 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated February 7, 2005, among the Company, the Guarantors, Banc of
America Securities LLC, Citigroup Global Markets Inc., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ABN AMRO Incorporated.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or a Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note in
the form of Exhibit A hereto bearing the Global Note Legend, the Private
Placement Legend and the Temporary Regulation S Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination equal to the outstanding principal amount of the Notes
initially sold in reliance on Rule 903 of Regulation S.
18
"Replacement Assets" means (a) non-current assets that shall be used
or useful in a Permitted Business or (b) all or substantially all of the assets
of a Permitted Business or a majority of the Voting Stock of any Person engaged
in a Permitted Business that shall become on the date of acquisition thereof a
Restricted Subsidiary of the Company.
"Representative" means the Trustee, agent or representative for any
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 and who shall have direct
responsibility for the administration of this Indenture.
"Restricted Certificated Note" means a Certificated Note bearing the
Private Placement Legend.
"Restricted Global Note" means individually and collectively a 144A
Global Note, a Regulation S Permanent Global Note and a Regulation S Temporary
Global Note.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"S&P" means Standard and Poor's Rating Services or any successor to
the rating agency business thereof and its successors.
"Sale and Leaseback Transaction" means, with respect to any Person,
any transaction involving any of the assets or properties of such Person
whether now owned or hereafter acquired, whereby such Person sells or transfers
such assets or properties and then or thereafter leases such assets or
properties or any part thereof or any other assets or properties which such
Person intends to use for substantially the same purpose or purposes as the
assets or properties sold or transferred.
"SEC" means the Securities and Exchange Commission.
19
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means:
(a) all Indebtedness of the Company or any Guarantor outstanding
under Credit Facilities and all Hedging Obligations with respect thereto;
(b) any other Indebtedness of the Company or any Guarantor permitted
to be incurred under the terms of this Indenture, unless the instrument
under which such Indebtedness is incurred expressly provides that it is on
a parity with or subordinated in right of payment to the Notes or any Note
Guarantee; and
(c) all Obligations with respect to the items listed in the preceding
clauses (a) and (b).
Notwithstanding anything to the contrary in the preceding paragraph,
Senior Debt shall not include:
(i) any liability for federal, state, local or other taxes owed or
owing by the Company or any Guarantor;
(ii) any Indebtedness of the Company or any Guarantor to any of their
Subsidiaries or other Affiliates;
(iii) any trade payables;
(iv) the portion of any Indebtedness that is incurred in violation of
this Indenture;
(v) any Indebtedness of the Company or any Guarantor that, when
incurred, was without recourse to the Company or such Guarantor;
(vi) any repurchase, redemption or other obligation in respect of
Disqualified Stock; or
(vii) the 8 1/2% Senior Subordinated Notes due 2013 of the Company.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would constitute a
"significant subsidiary" within the meaning of Article 1 of Regulation S-X of
the Securities Act.
"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.
20
"Subsidiary" means, with respect to any specified Person: (a) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and any partnership (i) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (ii) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"Temporary Regulation S Legend" means the legend set forth in Section
2.06(h), which is required to be placed on the Regulation S Temporary Global
Note.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with this Indenture and
thereafter means the successor serving hereunder.
"United" means United Industries Corporation.
"Unrestricted Certificated Note" means one or more Certificated Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note in the form
of Exhibit A attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution in compliance with Section 4.16 and
any Subsidiary of such Subsidiary.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"VARTA" means Varta Geratebatterie GmbH and its successors or
assignees.
"VARTA Joint Venture Agreement" means the agreement among VARTA AG,
the Company and ROV German Limited GmbH dated July 28, 2002, as amended.
"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: (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or
21
other required payments of principal, including payment at final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that shall elapse between such date and the making of such
payment; by (b) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any specified Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares or
Investments by foreign nationals mandated by applicable law) shall at the time
be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries
of such Person and one or more Wholly Owned Restricted Subsidiaries of such
Person.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction".................................. 4.11
"Asset Sale Offer"....................................... 4.10
"Authentication Order"................................... 2.02
"Change of Control Offer"................................ 4.14
"Change of Control Payment".............................. 4.14
"Change of Control Payment Date"......................... 4.14
"Company"................................................ Preamble
"Covenant Defeasance".................................... 8.03
"DTC".................................................... 2.03
"Event of Default"....................................... 6.01
"Excess Proceeds"........................................ 4.10
"Legal Defeasance"....................................... 8.02
"Offer Amount"........................................... 3.09
"Offer Period"........................................... 3.09
"Paying Agent"........................................... 2.03
"Payment Blockage Notice"................................ 10.03
"Payment Default"........................................ 6.01
"Permitted Debt"......................................... 4.09
"Purchase Date".......................................... 3.09
"Registrar".............................................. 2.03
"Repurchase Offer"....................................... 3.09
"Restricted Payments".................................... 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act. The
mandatory provisions of the TIA that are required to be a part of and govern
indentures qualified under the TIA are incorporated by reference in and are a
part of this Indenture, whether or not this Indenture is so qualified. 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:
22
"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.
Section 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) "including" or "include" means including or include without
limitation;
(d) words in the singular include the plural and words in the plural
include the singular;
(e) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section, clause or other subdivision;
(f) "$," "U.S. Dollars" and "United States Dollars" each refer to
United States dollars, or such other money of the United States
that at the time of payment is legal tender for payment of public
and private debts;
(g) provisions apply to successive events and transactions;
(h) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time; and
(i) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Indenture.
23
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating. (a) General. 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 issued in registered, global
form and shall be in denominations of $1,000 and integral multiples of $1,000
in excess thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with this Indenture, this
Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note
Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of
the outstanding Notes as shall be specified therein and each shall provide
that it shall represent the aggregate principal amount of outstanding Notes
from time to time endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee, in accordance with instructions given
by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall be deposited on behalf of the purchasers
of the Notes represented thereby with the Trustee, as custodian for The
Depository Trust Company in New York, New York, and registered in the name
of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Restricted Period shall be terminated upon the receipt by the
Trustee of (i) a written certificate from Euroclear and Clearstream
certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any Beneficial
Owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Securities
Act and who shall take delivery of a beneficial ownership interest in a
144A Global Note bearing a Private Placement Legend, all as contemplated by
Section 2.06(b)(ii) hereof), and (ii) an Officers' Certificate from
24
the Company. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation
S Permanent Global Notes, the Trustee shall cancel the Regulation S
Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes may from
time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream Banking" and "Customer Handbook" of Clearstream
shall be applicable to transfers of beneficial interests in the Regulation
S Global Notes that are held by Participants through Euroclear or
Clearstream.
Section 2.02. Execution and Authentication. One Officer shall sign the
Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time 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.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is unlimited.
The Trustee shall, upon a written order of the Company signed by one
Officer (an "Authentication Order"), authenticate Notes for original issue up
to the aggregate principal amount authorized pursuant to this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
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 promptly notify the
Trustee in writing of the name and address of
25
any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act
as such. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
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 shall 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 Liquidated Damages, if any, or interest on the Notes, and shall 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 thereof) shall have
no further liability for the money. If the Company or a Subsidiary thereof 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 ss.
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 ss. 312(a).
Section 2.06. Transfer and Exchange. (a) Transfer and Exchange of
Global Notes. A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another nominee of the Depositary, by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes shall be exchanged by the Company for
Certificated Notes if (i) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Company within
120 days after the date of such notice from the Depositary or (ii) the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Certificated Notes and delivers a
written notice to such effect to the Trustee; provided that in no event shall
the Regulation S Temporary Global Note be exchanged by the Company for
Certificated Notes prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) under the Securities Act or (iii) there shall have
occurred and be continuing a Default or Event of Default
26
with respect to the Notes. Upon the occurrence of any of the preceding events
in (i), (ii) or (iii) above, Certificated Notes shall be issued in such names
as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07, 2.10
and 2.11 hereof. Every Note authenticated and delivered in exchange for, or in
lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07, 2.10 or 2.11 hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with this
Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes
also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of the Restricted Period, transfers
of beneficial interests in the Regulation S Temporary Global Note may not
be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note. No written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest shall deliver to the Registrar
either (A) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to credit or cause to be credited a beneficial
interest in the Global Note in an amount equal to the beneficial interest
to be transferred or exchanged and instructions given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) a written
order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Certificated Note in an amount equal
to the beneficial interest to be transferred or exchanged and
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Certificated Note
shall be registered to effect the transfer or exchange referred to in (A)
above; provided that in no event shall Certificated Notes be issued upon
the transfer or exchange of beneficial interests in the Regulation S
27
Temporary Global Note prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act. Upon consummation of an
Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.06(i) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note
or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (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) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
28
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Certificated
Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Certificated Notes. If any Holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Certificated Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Certificated Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Certificated Note, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
29
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(i) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Certificated Notes to the
Persons in whose names such Notes are so registered. Any Certificated Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to
Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C), a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Certificated Note or transferred to a Person who takes
delivery thereof in the form of a Certificated Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted
Certificated Notes. A Holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted
Certificated Note or may transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Certificated Note
only if:
30
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (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) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Certificated Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Certificated Note that does not bear the Private Placement
Legend, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Certificated Notes. If any Holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for a Certificated Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Certificated Note, then, upon satisfaction of the conditions set
forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(i) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination
or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from
31
the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Certificated Notes to the Persons in whose
names such Notes are so registered. Any Certificated Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Certificated Notes for Beneficial
Interests.
(i) Restricted Certificated Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Certificated
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Certificated
Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by
the Registrar of the following documentation:
(A) if the Holder of such Restricted Certificated Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Certificated Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Certificated Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Certificated Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Certificated Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such Restricted Certificated Note is being
transferred pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cancel the Restricted Certificated Note, increase or cause to
be increased the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, and in the case of clause (C) above, the Regulation S
Global Note.
32
(ii) Restricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Certificated Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Certificated Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (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) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Certificated Notes
proposes to exchange such Notes for a beneficial interest
in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Certificated Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in
the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(ii), the Trustee shall cancel the Certificated Notes and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Note.
(iii) Unrestricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Certificated Note
may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Certificated Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an
33
Unrestricted Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Certificated Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Certificated Note to a
beneficial interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Certificated Notes so transferred.
(e) Transfer and Exchange of Certificated Notes for Certificated
Notes. Upon request by a Holder of Certificated Notes and such Holder's
compliance with this Section 2.06(e), the Registrar shall register the
transfer or exchange of Certificated Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to
the Registrar the Certificated Notes duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such ▇▇▇▇▇▇ 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 clauses of this Section 2.06(e).
(i) Restricted Certificated Notes to Restricted Certificated Notes.
Any Restricted Certificated Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Certificated Note if the Registrar receives the following:
(A) if the transfer shall 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 shall 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 shall 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.
(ii) Restricted Certificated Notes to Unrestricted Certificated Notes.
Any Restricted Certificated Note may be exchanged by the Holder thereof for
an Unrestricted Certificated Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Certificated 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
34
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;
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Certificated Notes
proposes to exchange such Notes for an Unrestricted Certificated
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Certificated Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Certificated
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 Certificated Notes to Unrestricted Certificated
Notes. A Holder of Unrestricted Certificated Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Certificated Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Certificated Notes pursuant
to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance
by Persons that certify in the applicable Letters of Transmittal that (x)
they are not Broker-Dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the
Exchange Offer and (ii) Certificated Notes in an aggregate principal amount
equal to the principal amount of the Restricted Certificated Notes accepted
for exchange in the Exchange Offer. Concurrently with the issuance of
35
such Notes, the Trustee shall cause the aggregate principal amount of
the applicable Restricted Global Notes to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Certificated Notes so accepted
Certificated Notes in the appropriate principal amount. Any Notes that
remain outstanding after the consummation of the Exchange Offer, and
Exchange Notes issued in connection with the Exchange Offer, shall be
treated as a single class of securities under this Indenture.
(g) Legends. The following legends shall appear on the face of Global
Notes and Certificated Notes issued under this Indenture as specified in
this Indenture.
(i) Private Placement Legend. (A) Except as permitted by subparagraph
(B) below, each Global Note and each Certificated Note (and all Notes
issued in exchange therefor or substitution thereof) shall bear the legend
in substantially the following form:
"THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR FOREIGN SECURITIES LAWS. NEITHER THIS NOTE NOR THE
GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY
PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON OF THIS
NOTE) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR
36
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT
TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE
PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION
DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND SHALL BE REMOVED UPON
THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE."
(B) Notwithstanding the foregoing, any Global Note or Certificated
Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY."
(h) Regulation S Temporary Global Note Legend. Each Regulation S
Temporary Global Note shall bear a legend in substantially the
following form:
"THE NOTE IS A TEMPORARY REGULATION S GLOBAL NOTE WITHIN THE MEANING
OF THE INDENTURE REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES
DESCRIBED IN SECTION 2.06 OF THE INDENTURE, NO TRANSFER OR EXCHANGE
OF AN INTEREST IN THIS TEMPORARY GLOBAL NOTE MAY BE MADE FOR AN
INTEREST IN THE RESTRICTED GLOBAL NOTE. NO EXCHANGE OF AN INTEREST
IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY BE MADE
37
FOR AN INTEREST IN THE PERMANENT REGULATION S GLOBAL NOTE EXCEPT (A)
ON OR AFTER THE TERMINATION OF THE DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT")) AND (B) UPON DELIVERY OF THE OWNER SECURITIES
CERTIFICATION AND THE TRANSFEREE SECURITIES CERTIFICATION RELATING TO
SUCH INTEREST IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.
UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING OF THE NOTES, AN
OFFER OR SALE OF THE NOTES WITHIN THE UNITED STATES BY A DEALER (AS
DEFINED IN THE SECURITIES ACT OF 1933, AS AMENDED) MAY VIOLATE THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED IF
SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A
UNDER THE SECURITIES ACT OF 1933, AS AMENDED."
(i) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged
for Certificated Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note
shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.12 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a
Person who shall take delivery thereof in the form of a beneficial
interest in another Global Note or for Certificated Notes, the principal
amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such increase.
(j) General Provisions Relating to Transfers and Exchanges. (i) To
permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Global Notes and Certificated Notes
upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Certificated 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 2.11, 3.06, 3.09, 4.10, 4.14 and 9.05 hereof).
38
(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 Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes
shall be the valid and legally binding obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Certificated 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 any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange
any Note 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.
(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 Global Notes and Certificated
Notes in accordance with 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 issued pursuant to this Section 2.07 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 canceled by
it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with this Indenture,
and those described in this Section as not outstanding. Except as
39
set forth in Section 2.09 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note; however,
Notes held by the Company or a Subsidiary of the Company shall not be deemed
to be outstanding for purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser or protected 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 of the foregoing) holds, on a redemption date or maturity
date, money sufficient to pay Notes payable on that date in full, then on and
after that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.
Section 2.09. Treasury Notes. In determining whether the Holders of
the required principal amount of the Notes have concurred in any direction,
waiver or consent, Notes owned by the Company, any direct or indirect
Subsidiary of the Company or any Affiliate of 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. Notes so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to deliver any such direction, waiver or consent with respect
to the Notes and that the pledgee is not the Company or any obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
Section 2.10. Certificated Notes. (a) A Global Note deposited with
the Depositary or other custodian for the Depositary pursuant to Section 2.01
shall be transferred to the beneficial owners thereof in the form of
certificated Notes only if such transfer complies with Section 2.06. Notice of
any such transfer shall be given by the Company in accordance with the
provisions of Section 12.02.
(b) Any Global Note that is transferable to the beneficial owners
thereof in the form of certificated Notes pursuant to this Section 2.10
shall be surrendered by the Depositary to the Transfer Agent, to be so
transferred, in whole or from time to time in part, without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each
portion of such Global Note, an equal aggregate principal amount of Notes
of authorized denominations in the form of certificated Notes.
(c) In connection with the exchange of an entire Global Note for
certificated Notes pursuant to this Section 2.10, such Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Note, an equal aggregate principal
amount of certificated Notes. In the event that such certificated Notes
are not issued to
40
each beneficial owner promptly after the Registrar has received a
request from the Depositary or (through the Depositary) a beneficial owner
to issue such certificated Notes, the Company expressly acknowledges, with
respect to the right of any Holder to pursue a remedy pursuant to Article
Six hereof, the right of any beneficial owner of Notes to pursue such
remedy with respect to the portion of the Global Note that represents such
beneficial owner's Notes as if such certificated Notes had been issued.
(d) Any portion of a Global Note transferred or exchanged pursuant to
this Section 2.10 shall be executed, authenticated and delivered only in
registered form in denominations of $1,000 and any integral multiple
thereof and registered in such names as the Depositary shall direct.
Subject to the foregoing, a Global Note is not exchangeable except for a
Global Note of like denomination to be registered in the name of the
Depositary or its nominee. In the event that a Global Note becomes
exchangeable for certificated Notes, payment of principal, premium, if
any, and Liquidated Damages, if any, and interest on the certificated
Notes will be payable, and the transfer of the certificated Notes will be
registrable, at the office or agency of the Company maintained for such
purposes in accordance with Section 2.03.
(e) In the event of the occurrence of any of the events specified in
Section 2.10(a), the Company will promptly make available to the Trustee a
reasonable supply of certificated Notes in definitive, fully registered
form without interest coupons.
Section 2.11. 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 2.12. 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 dispose of such canceled Notes in its customary manner
(subject to record retention requirements of the Exchange Act). Subject to
Section 2.07, 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 2.13. 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,
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
41
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 2.14. CUSIP and ISIN Numbers. The Company in issuing the Notes
may use "CUSIP" and "ISIN" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" and "ISIN" 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 of such numbers either as printed
on the Notes or as contained in any notice of redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and
any such redemption shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee of any change in the
"CUSIP" or "ISIN" numbers.
Section 2.15. Deposit of Moneys. By or before 12:00 p.m. (noon)
Eastern Time on each due date of the principal, premium, if any, and Liquidated
Damages, if any, and interest on any Notes, the Company shall deposit with the
Paying Agent money in immediately available funds sufficient to pay such
principal, premium, if any, and Liquidated Damages, if any, and interest so
becoming due on the due date for payment under the Notes and (unless the Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
Section 2.16. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee. If the Company elects to redeem
Notes pursuant to Section 3.07 hereof, it shall furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date (unless a
shorter notice period shall be satisfactory to the Trustee in its reasonable
discretion), an Officers' Certificate setting forth (a) the clause of this
Indenture pursuant to which the redemption shall occur, (b) the redemption
date, (c) the principal amount of Notes to be redeemed and (d) the redemption
price.
Section 3.02. Selection of Notes to Be Redeemed. If less than all of
the Notes are to be redeemed at any time, selection of Notes for redemption
shall be made by the Trustee 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 by such
method as the Trustee shall deem 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 (unless a shorter time
42
period shall be satisfactory to 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 thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence, 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 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 new Note or Notes in
principal amount equal to the unredeemed portion of the original Note
shall be issued in the name of the Holder thereof 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 and become due on the date
fixed for redemption;
(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 Officers' Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph. The notice, if mailed in the manner
provided herein shall be presumed to have been given, whether or not the
Holder receives such notice.
43
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. Not later than one
Business Day prior to 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 and unpaid interest and Liquidated Damages, if any, 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 and unpaid interest on, all Notes to be
redeemed.
If the Company complies with the preceding paragraph of this Section
3.05, 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 a 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 accrue on the unpaid principal, from the redemption date until
such principal is paid, and to the extent permitted by applicable law on any
interest accrued through the date of redemption but not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06. Notes Redeemed 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) Except as set forth in clause
(b) of this Section 3.07, the Notes shall not be redeemable at the Company's
option prior to February 1, 2010. Thereafter, the Company may redeem all or a
part of the Notes, from time to time, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated
Damages, if any, to the applicable redemption date, if redeemed during the
twelve-month period beginning on February 1 of the years indicated below:
Year Percentage
---- ----------
2010........................................ 103.688%
2011........................................ 102.458%
2012........................................ 101.229%
2013 and thereafter......................... 100.000%
(b) At any time prior to February 1, 2008, the Company may at its
option on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes at a redemption price of 107.375% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date, with the
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net cash proceeds of one or more Equity Offerings; provided that (i) at
least 65% of the aggregate principal amount of Notes remains outstanding
immediately after the occurrence of such redemption (excluding Notes held
by the Company or its Subsidiaries); and (ii) the redemption must occur
within 45 days of the date of the closing of such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption. The Company is not required to
make mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09. Offer to Purchase. In the event that, pursuant to
Sections 4.10 and 4.14 hereof, the Company shall be required to commence an
offer to all Holders to purchase Notes (a "Repurchase Offer"), it shall follow
the procedures specified below.
The Repurchase 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 principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Repurchase Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest
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 Repurchase Offer.
Upon the commencement of a Repurchase 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 Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall state:
(a) that the Repurchase Offer is being made pursuant to this Section
3.09 and Section 4.10 or 4.14 hereof and the length of time the Repurchase
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest and Liquidated Damages, if any;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Repurchase Offer shall cease to
accrue interest and Liquidated Damages, if any, after the Purchase Date;
45
(e) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer may only elect to have all of such Note purchased or a
portion of such Note in denominations of $1,000 or integral multiples
thereof;
(f) that Holders electing to have a Note purchased pursuant to any
Repurchase 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, the
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;
(g) 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 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 ▇▇▇▇▇▇ is withdrawing his election to have such Note
purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount required pursuant to Section 4.10, the
Company shall select the Notes to be purchased pursuant to the terms of
Section 3.02 (with such adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(i) 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 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 Repurchase
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, 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 Repurchase 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 Sections 3.01
through 3.06 hereof.
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes. The Company shall pay or cause to be
paid the principal of, premium, if any, and Liquidated Damages, if any, and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. Principal, premium, if any, and Liquidated Damages, if any,
and interest shall be considered paid on the date due if the Paying Agent, if
a Person other than the Company, a Subsidiary or affiliate thereof, holds as
of 12:00 p.m. (noon) Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and Liquidated Damages, if any, and
accrued and unpaid interest then due.
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 Liquidated Damages (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.
Section 4.03. Reports. (a) Whether or not required by the SEC, so
long as any Notes are outstanding, the Company shall prepare and furnish to
the Holders of Notes, within the time periods specified in the SEC's rules and
regulations, (i) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such Forms, including a "Management's
Discussion
47
and Analysis of Financial Condition and Results of Operations" and, with
respect to the annual information only, a report on the annual financial
statements by the Company's certified independent accountants; and (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 addition, whether or not
required by the SEC, the Company shall file a copy of all of the information
and reports referred to in clauses (i) and (ii) above with the SEC for public
availability within the time periods specified in the SEC's rules and
regulations (unless the SEC shall not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company and the Guarantors have agreed that, for so
long as any Notes remain outstanding, they shall furnish to the Holders and to
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial
information required by paragraph (a) above shall include a reasonably
detailed presentation, either on the face of the financial statements or
in the footnotes thereto, and in "Management's Discussion and Analysis of
Financial Condition and Results of Operations," of the financial condition
and results of operations of the Company and its Restricted Subsidiaries
separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company.
Section 4.04. Compliance Certificate. (a) The Company and each
Guarantor (to the extent that such Guarantor is so required under the TIA)
shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers' Certificate stating that, to his or her knowledge the
Company has kept, observed, performed and fulfilled its obligations under 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 his or her
knowledge no event has occurred and is continuing by reason of which payments
on account of the principal of or interest, if any, on the Notes is prohibited
or if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(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 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, but in no event later than five
Business Days, upon any Officer
48
becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what action
the Company is taking or proposes to take with respect thereto.
Section 4.05. Taxes. The Company 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. Each of the Company and
the Guarantors covenants (to the extent that it is permitted by applicable
law) 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 obligations of the Company and each of the Guarantors and the
performance of this Indenture by the Company and each of the Guarantors; and
each of the Company and the Guarantors (to the extent that it is permitted by
applicable law) 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. (a) The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect holders
of the Company's or any of its Restricted Subsidiaries' Equity Interests
in their capacity as such (other than dividends, payments or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company
or to the Company or a Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company
or any Restricted Subsidiary of the Company held by Persons other than the
Company or any of its Restricted Subsidiaries, other than the purchase,
redemption or acquisition or retirement for value of any of (x) all of the
Equity Interests in VARTA not held by the Company or any of its Restricted
Subsidiaries pursuant to, and in accordance with the terms of, the VARTA
Joint Venture Agreement as in effect on the Issue Date to the extent the
cash purchase price does not exceed (euro)5.0 million; (y) all of the
Equity Interests of Ningbo Baowang not held by the Company or any of its
Restricted Subsidiaries to the extent the cash purchase price does not
exceed $5.0 million; and (z) all of the Equity Interests of Microlite not
held by the Company or any of its Restricted Subsidiaries pursuant to, and
in accordance with the terms of, the Microlite Purchase Agreement as in
effect on the date of the Indenture to the extent the cash purchase price
does not exceed $10.0 million;
49
(iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes or the Note Guarantees, except a payment of
interest or principal on or after the Stated Maturity thereof or on
Indebtedness permitted to be incurred pursuant to Section 4.09(b)(vi); or
(iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(B) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 4.09; and
(C) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted
by clauses (ii), (iii) (iv) (to the extent such dividends are paid to the
Company or any of its Restricted Subsidiaries) and (v) of Section
4.07(b)), is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the Issue Date to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit); plus
(2) 100% of the aggregate net cash proceeds received by the
Company since the Issue Date as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted
into or exchanged for such Equity Interests (other than Equity
Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company); plus
(3) with respect to Restricted Investments made by the Company
and its Restricted Subsidiaries after the Issue Date, an amount equal
to the net reduction in Investments (other than reductions in
Permitted Investments) in any Person resulting from repayments of
loans or advances, or other transfers of assets, in each case to the
Company or any Restricted Subsidiary or from the net
50
cash proceeds from the sale of any such Investment (except, in each
case, to the extent any such payment or proceeds are included in the
calculation of Consolidated Net Income, from the release of any
Guarantee (except to the extent any amounts are paid under such
Guarantee) or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries, not to exceed, in each case, the amount of
Investments previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary; plus
(4) $50.0 million.
(b) So long as no Default has occurred and is continuing or would be
caused thereby, the preceding clauses of this Section 4.07 shall not
prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would
have complied with this Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or any
Guarantor or of any Equity Interests of the Company or any Guarantor in
exchange for, or out of the net cash proceeds of a contribution to the
common equity of the Company or a substantially concurrent sale (other
than to a Subsidiary of the Company) of, Equity Interests of the Company
(other than Disqualified Stock); provided that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause
(C)(2) of Section 4.07(a);
(iii) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Company or any Guarantor with the net
cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its common Equity Interests on a pro rata basis;
(v) Investments acquired as a capital contribution to, or in exchange
for, or out of the net cash proceeds of a substantially concurrent
offering of, Equity Interests (other than Disqualified Stock) of the
Company; provided that the amount of any such net cash proceeds that are
utilized for any such acquisition or exchange shall be excluded from
clause (C)(2) of Section 4.07(a);
(vi) the repurchase of Capital Stock deemed to occur upon the
exercise of options or warrants if such Capital Stock represents all or a
portion of the exercise price thereof;
(vii) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company held by any employee,
former employee, director or former director of the Company (or any of its
Restricted Subsidiaries) upon the death, disability or termination of
employment of any of the foregoing pursuant to the terms of any employee
equity subscription agreement, stock option agreement or similar
51
agreement; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests in any fiscal
year shall not exceed the sum of (x) $5.0 million and (y) the amount of
Restricted Payments permitted but not made pursuant to this clause (vii)
in the immediately preceding fiscal year; or
(viii) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of any Restricted Subsidiary of the
Company from the minority stockholders (or other holders of minority
interest, however designated) of such Restricted Subsidiary for fair
market value; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $20.0 million.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued to or by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued
pursuant to this Section 4.07 shall be determined by the Board of Directors of
the Company whose resolution with respect thereto shall be delivered to the
Trustee. Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed, together with a copy
of any fairness opinion or appraisal required by this Indenture.
Section 4.08. Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital
Stock (or with respect to any other interest or participation in, or
measured by, its profits) to the Company or any of its Restricted
Subsidiaries or pay any liabilities owed to the Company or any of its
Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(c) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances
or restrictions existing under, by reason of, or with respect to:
(i) the Credit Agreement, Existing Indebtedness or any other
agreements in effect on the Issue Date and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements
or refinancings thereof, provided that the encumbrances and restrictions
in any such amendments, modifications, restatements, renewals, extensions,
supplements, refundings, replacement or refinancings are no more
restrictive, taken as a whole, than those in effect on the Issue Date;
52
(ii) applicable law, rule, regulation or order;
(iii) any Person or the property or assets of a Person acquired by
the Company or any of its Restricted Subsidiaries existing at the time of
such acquisition and not incurred in connection with or in contemplation
of such acquisition, which encumbrance or restriction is not applicable to
any Person or the properties or assets of any Person, other than the
Person, or the property or assets of such Person, so acquired and any
amendments, modifications, restatements, renewals, extensions,
supplements, refundings, replacements or refinancings thereof, provided
that the encumbrances and restrictions in any such amendments,
modifications, restatements, renewals, extensions, supplements,
refundings, replacement or refinancings are no more restrictive, taken as
a whole, than those contained in the Credit Agreement, Existing
Indebtedness or such other agreements as in effect on the date of the
acquisition;
(iv) in the case of clause (c) of the first paragraph of this Section
4.08:
(A) provisions that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset,
(B) restrictions existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on,
any property or assets of the Company or any Restricted Subsidiary
not otherwise prohibited by this Indenture, or
(C) restrictions arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property
or assets of the Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary;
(v) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business;
(vi) any agreement for the sale or other disposition of all or
substantially all of the capital stock of, or property and assets of, a
Restricted Subsidiary that restricted distributions by that Restricted
Subsidiary pending such sale or other disposition; and
(vii) Indebtedness of a Foreign Subsidiary permitted to be incurred
under this Indenture; provided that (A) such encumbrances or restrictions
are ordinary and customary with respect to the type of Indebtedness being
incurred; and (B) such encumbrances or restrictions will not affect the
Company's ability to make principal and interest payments on the Notes, as
determined in good faith by the Board of Directors of the Company.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock. (a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur any Indebtedness (including
Acquired Debt), and the Company shall not permit
53
any of its Restricted Subsidiaries to issue any preferred stock; provided,
however, that the Company or any Restricted Subsidiary of the Company may
incur Indebtedness, if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred would have been at least 2.0 to 1,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred at
the beginning of such four-quarter period.
(b) So long as no Default shall have occurred and be continuing or
would be caused thereby, Section 4.09(a) shall not prohibit the incurrence
of any of the following items of Indebtedness (collectively, "Permitted
Debt"):
(i) the incurrence by the Company or any Restricted Subsidiary of the
Company of Indebtedness under Credit Facilities (and the incurrence of
Guarantees thereof) in an aggregate principal amount at any one time
outstanding pursuant to this clause (i) (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability
of the Company and its Restricted Subsidiaries thereunder) not to exceed
$1.6 billion, less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company or any Restricted Subsidiary to permanently repay
any such Indebtedness (and, in the case of any revolving credit
Indebtedness, to effect a corresponding commitment reduction thereunder)
pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees to
be issued on the Issue Date and the Exchange Notes and the related Note
Guarantees to be issued pursuant to the Registration Rights Agreement;
(iv) the incurrence by the Company or any Restricted Subsidiary of
the Company of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (iv), not to exceed, at any time outstanding, the
greater of (a) $50.0 million and (b) 10% of Consolidated Net Tangible
Assets of the Company;
(v) the incurrence by the Company or any Restricted Subsidiary of the
Company of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by this
Indenture to be incurred under Section 4.09(a) or clauses (ii) (other than
the 9 7/8% Senior Subordinated Notes due 2009 of United incurred in
connection with its acquisition by the Company), (iii), (iv), (v), or
(viii) of this Section 4.09(b);
54
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness owing to and held by the Company
or any of its Restricted Subsidiaries; provided, however, that:
(x) if the Company or any Guarantor is the obligor on such
Indebtedness, such Indebtedness must be unsecured and expressly
subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes, in the case of the Company, or the Note
Guarantee, in the case of a Guarantor;
(y) Indebtedness owed to the Company or any Guarantor must be
evidenced by an unsubordinated promissory note, unless the obligor
under such Indebtedness is the Company or a Guarantor; and
(z) (A) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other
than the Company or a Restricted Subsidiary thereof and (B) any sale
or other transfer of any such Indebtedness to a Person that is not
either the Company or a Restricted Subsidiary thereof, 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);
(vii) the Guarantee by the Company or any Restricted Subsidiary of
the Company of Indebtedness of the Company or a Restricted Subsidiary of
the Company that was permitted to be incurred by another provision of this
Section 4.09;
(viii) the incurrence by the Company or any Restricted Subsidiary of
the Company of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (8), not to
exceed $50.0 million; and
(ix) the incurrence of Indebtedness by the Company or any Restricted
Subsidiary of the Company 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 that such
Indebtedness is extinguished within five Business Days of incurrence.
(c) For purposes of determining compliance with this Section 4.09, in
the event that any proposed Indebtedness meets the criteria of more than
one of the categories of Permitted Debt described in clauses (i) through
(ix) of Section 4.09(b) above, or is entitled to be incurred pursuant to
Section 4.09(a), the Company shall be permitted to classify at the time of
its incurrence such item of Indebtedness in any manner that complies with
this Section 4.09. Indebtedness under Credit Facilities outstanding on the
date on which Notes are first issued under this Indenture shall be deemed
to have been incurred on such date in reliance on the exception provided
by clause (i) of Section 4.09(b). In addition, any Indebtedness originally
classified as incurred pursuant to clauses (i) through (ix) of Section
4.09(b) may later be reclassified
55
by the Company such that it shall be deemed as having been incurred
pursuant to another of such clauses to the extent that such reclassified
Indebtedness could be incurred pursuant to such new clause at the time of
such reclassification.
(d) Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that may be incurred pursuant to this
Section 4.09 shall not be deemed to be exceeded, with respect to any
outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.
Section 4.10. Asset Sales. (a) The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) the Company (or the 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 or Equity Interests issued or sold or
otherwise disposed of;
(ii) such fair market value is determined by the Company's Board of
Directors and evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee; and
(iii) at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash or
Replacement Assets or a combination of both. For purposes of this clause,
each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet), of the Company or
any Restricted Subsidiary (other than contingent liabilities,
Indebtedness that is by its terms subordinated to the Notes or any
Note Guarantee and liabilities to the extent owed to the Company or
any Affiliate of the Company) that are assumed by the transferee of
any such assets pursuant to a written novation agreement that
releases the Company or such Restricted Subsidiary from further
liability; and
(B) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that
are converted by the Company or such Restricted Subsidiary into cash
(to the extent of the cash received in that conversion) within 90
days of the applicable Asset Sale.
(b) Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds at its option:
(i) to repay Senior Debt and, if the Senior Debt repaid is revolving
credit Indebtedness, to correspondingly reduce commitments with respect
thereto; or
(ii) to purchase Replacement Assets or make a capital expenditure in
or that is used or useful in a Permitted Business.
56
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "Excess
Proceeds." Within 10 days after the aggregate amount of Excess Proceeds
exceeds $20.0 million, the Company shall make an offer (an "Asset Sale
Offer") to all Holders of Notes and all holders of other Indebtedness that
is pari passu with the Notes or any Note Guarantee containing provisions
similar to those set forth in this Indenture with respect to offers to
purchase with the proceeds of sales of assets, to purchase the maximum
principal amount of Notes and such other pari passu Indebtedness that may
be purchased out of the Excess Proceeds. The offer price in any Asset Sale
Offer shall be equal to 100% of the principal amount of the Notes and such
other pari passu Indebtedness plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase, and shall be payable
in cash. If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount
of Notes and such other pari passu Indebtedness tendered into such Asset
Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other
pari passu Indebtedness shall be purchased on a pro rata basis based on
the principal amount of Notes and such other pari passu Indebtedness
tendered. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(d) Any Asset Sale Offer shall be made in accordance with Section
3.09. The Company shall 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
each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with
this Section 4.10 or Section 3.09, 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 or Section 3.09 by virtue
of such compliance.
Section 4.11. Transactions with Affiliates. (a) The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter
into, make, amend, renew or extend any transaction, contract, agreement,
understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable arm's-length transaction by the Company
or such Restricted Subsidiary with a Person that is not an Affiliate of
the Company; and
(ii) the Company delivers to the Trustee:
57
(A) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, a resolution of the Board of Directors of
the Company set forth in an Officers' Certificate certifying that
such Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.11 and that such Affiliate
Transaction or series of related Affiliate Transactions has been
approved by a majority of the disinterested members of the Board of
Directors of the Company; and
(B) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $25.0 million, an opinion as to the fairness to the Company
or such Restricted Subsidiary of such Affiliate Transaction or series
of related Affiliate Transactions from a financial point of view
issued by an independent accounting, appraisal or investment banking
firm of national standing.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to Section 4.11(a):
(i) transactions between or among the Company and/or its Restricted
Subsidiaries;
(ii) payment of reasonable and customary fees and compensation to,
and reasonable and customary indemnification arrangements and similar
payments on behalf of, directors of the Company;
(iii) Restricted Payments that are permitted by this Indenture;
(iv) any sale of Capital Stock (other than Disqualified Stock) of the
Company;
(v) loans and advances to officers and employees of the Company or
any of its Restricted Subsidiaries for bona fide business purposes in the
ordinary course of business consistent with past practice;
(vi) any employment, consulting, service or termination agreement, or
reasonable and customary indemnification arrangements, entered into by the
Company or any of its Restricted Subsidiaries with officers and employees
of the Company or any of its Restricted Subsidiaries and the payment of
compensation to officers and employees of the Company or any of its
Restricted Subsidiaries (including amounts paid pursuant to employee
benefit plans, employee stock option or similar plans), in each case in
the ordinary course of business and consistent with past practice; and
(vii) any agreements or arrangements in effect on the Issue Date, or
any amendment, modification, or supplement thereto or any replacement
thereof, as long as such agreement or arrangement, as so amended,
modified, supplemented or replaced, taken as a whole, is not more
disadvantageous to the Company and its Restricted Subsidiaries than the
original agreement as in effect on the Issue Date, as determined in
58
good faith by the Company's Board of Directors, and any transactions
contemplated by any of the foregoing agreements or arrangements.
Section 4.12. Liens. The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind securing Indebtedness
(other than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired, unless all payments due under this Indenture and the
Notes are secured on an equal and ratable basis with the obligations so
secured until such time as such obligations are no longer secured by a Lien.
Section 4.13. Corporate Existence. Subject to Article 5 hereof, the
Company shall do or cause to be done all things reasonably necessary to
preserve and keep in full force and effect (a) its corporate existence, and
the corporate, partnership or other existence of each of its subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such subsidiary and (b) the
material rights (charter and statutory), licenses and franchises of the
Company and its subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.14. Offer to Repurchase upon Change of Control. (a) If a
Change of Control occurs, each Holder of Notes shall have the right to require
the Company to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes pursuant to the offer described below
(the "Change of Control Offer") at an offer price in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase (the "Change of
Control Payment").
(b) Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and which shall be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date") and stating that the Change of Control
Offer is being made pursuant to this Section 4.14 and that all Notes
properly tendered pursuant to the Change of Control Offer will be accepted
for payment.
(c) Any Change of Control offer shall be made in accordance with
Section 3.09. The Company shall 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 the Notes as a result of a Change of
Control. To the extent that the provisions of any securities laws or
regulations conflict with this Section 4.14, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.14 by virtue of such
compliance.
59
(d) Prior to complying with this Section 4.14, but in any event
within 30 days following a Change of Control, the Company shall either
repay all outstanding Senior Debt or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Debt to permit the
repurchase of Notes required by this Section 4.14.
(e) Clause (b) of this Section 4.14 shall be applicable regardless of
whether any other Sections of this Indenture are applicable. Except as
described above with respect to a Change of Control, this Indenture does
not contain provisions that permit the Holders of the Notes to require
that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar transaction.
(f) 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 Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered
and not withdrawn under such Change of Control Offer.
Section 4.15. Limitation on Senior Subordinated Debt. The Company
shall not incur any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt of the Company unless it is pari passu or
subordinate in right of payment to the Notes to the same extent. No Guarantor
shall incur any Indebtedness that is subordinate or junior in right of payment
to the Senior Debt of such Guarantor unless it is pari passu or subordinate in
right of payment to such Guarantor's Note Guarantee to the same extent. For
purposes of the foregoing, no Indebtedness will be deemed to be subordinate or
junior in right of payment to any other Indebtedness of the Company or any
Guarantor, as applicable, solely by reason of any Liens or Guarantees arising
or created in respect thereof or by virtue of the fact that the holders of any
secured Indebtedness have entered into intercreditor agreements giving one or
more of such holders priority over the other holders in the collateral held by
them.
Section 4.16. Designation of Restricted and Unrestricted
Subsidiaries. (a) The Board of Directors of the Company may designate any
Restricted Subsidiary of the Company to be an Unrestricted Subsidiary;
provided that:
(i) any Guarantee by the Company or any Restricted Subsidiary of any
Indebtedness of the Subsidiary being so designated shall be deemed to be
an incurrence of Indebtedness by the Company or such Restricted Subsidiary
(or both, if applicable) at the time of such designation, and such
incurrence of Indebtedness would be permitted under Section 4.09;
(ii) the aggregate fair market value of all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the Subsidiary
being so designated (including any Guarantee by the Company or any
Restricted Subsidiary of any Indebtedness of such Subsidiary) shall be
deemed to be a Restricted Investment made as of the time of such
designation and that such Investment would be permitted under Section
4.07;
60
(iii) such Subsidiary does not own any Equity Interests of, or hold
any Liens on any property of, the Company or any Restricted Subsidiary;
(iv) the Subsidiary being so designated:
(A) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company;
(B) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to
maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results;
(C) has not Guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries, except to the extent such Guarantee or
credit support would be released upon such designation; and
(D) has at least one director on its Board of Directors that is
not a director or officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is not a
director or officer of the Company or any of its Restricted
Subsidiaries; and
(v) no Default or Event of Default would be in existence following
such designation.
(b) Any designation of a Restricted Subsidiary of the Company as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by this
Indenture. If, at any time, any Unrestricted Subsidiary would fail to meet
any of the preceding requirements described in clause (iv) above, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness, Investments, or Liens on the property, of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary
of the Company as of such date and, if such Indebtedness, Investments or
Liens are not permitted to be incurred as of such date under this
Indenture, the Company shall be in default under this Indenture.
(c) The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:
(i) such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such
61
Unrestricted Subsidiary and such designation shall only be permitted if
such Indebtedness is permitted under Section 4.09, calculated on a pro
forma basis as if such designation had occurred at the beginning of the
four-quarter reference period;
(ii) all outstanding Investments owned by such Unrestricted
Subsidiary shall be deemed to be made as of the time of such designation
and such Investments shall only be permitted if such Investments would be
permitted under Section 4.07;
(iii) all Liens upon property or assets of such Unrestricted
Subsidiary existing at the time of such designation would be permitted
under Section 4.12; and
(iv) no Default or Event of Default would be in existence following
such designation.
Section 4.17. Payments for Consent. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, directly or indirectly, pay
or cause to be paid any consideration to or for the benefit of any Holder of
Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid and is paid to all Holders of the Notes
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
Section 4.18. Business Activities. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, engage in any business other
than Permitted Businesses, except to such extent as would not be material to
the Company and its Restricted Subsidiaries taken as a whole.
Section 4.19. Limitation on Issuances and Sales of Equity Interests
in Restricted Subsidiaries. The Company shall not transfer, convey, sell,
lease or otherwise dispose of, and shall not permit any of its Restricted
Subsidiaries to, issue, transfer, convey, sell, lease or otherwise dispose of
any Equity Interests in any Restricted Subsidiary of the Company to any Person
(other than the Company or a Restricted Subsidiary of the Company or, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares or issuances of shares of Capital Stock of foreign Restricted
Subsidiaries to foreign nationals, to the extent required by applicable law),
except:
(1) if, immediately after giving effect to such issuance, transfer,
conveyance, sale, lease or other disposition, such Restricted Subsidiary
would no longer constitute a Restricted Subsidiary and any Investment in
such Person remaining after giving effect to such issuance or sale would
have been permitted to be made under Section 4.07 if made on the date of
such issuance or sale and the cash Net Proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance
with Section 4.10; or
(2) other sales of Capital Stock of a Restricted Subsidiary by the
Company or a Restricted Subsidiary, provided that the Company or such
Restricted Subsidiary complies with Section 4.10.
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Section 4.20. Additional Note Guarantees. (a) If the Company or any
of its Restricted Subsidiaries acquires or creates another Domestic Subsidiary
on or after the Issue Date, then that newly acquired or created Domestic
Subsidiary must become a Guarantor and execute a supplemental indenture and
deliver an Opinion of Counsel to the Trustee.
(b) The Company shall not permit any of its Restricted Subsidiaries,
directly or indirectly, to Guarantee or pledge any assets to secure the
payment of any other Indebtedness of the Company or any Restricted
Subsidiary thereof, other than Foreign Subsidiaries, unless such
Restricted Subsidiary is a Guarantor or simultaneously executes and
delivers a supplemental indenture providing for the Guarantee of the
payment of the Notes by such Restricted Subsidiary, which Guarantee shall
be senior to or pari passu with such Subsidiary's Guarantee of such other
Indebtedness unless such other Indebtedness is Senior Debt, in which case
the Guarantee of the Notes may be subordinated to the Guarantee of such
Senior Debt to the same extent as the Notes are subordinated to such
Senior Debt. The form of the Note Guarantee is attached as Exhibit D
hereto.
(c) A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person), another
Person, other than the Company or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no Default
or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) is a
corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia and assumes all
the obligations of that Guarantor under this Indenture, its Note
Guarantee and the Registration Rights Agreement pursuant to a
supplemental indenture satisfactory to the Trustee; or
(B) such sale or other disposition or consolidation or merger
complies with Section 4.10.
(d) The Note Guarantee of a Guarantor will be released:
(i) in connection with any sale or other disposition of all of the
Capital Stock of a Guarantor to a Person that is not (either before or
after giving effect to such transaction) an Affiliate of the Company, if
the sale of all such Capital Stock of that Guarantor complies with Section
4.10;
(ii) if the Company properly designates any Restricted Subsidiary
that is a Guarantor as an Unrestricted Subsidiary under this Indenture; or
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(iii) solely in the case of a Note Guarantee created pursuant to
Section 4.20(a), upon the release or discharge of the Guarantee which
resulted in the creation of such Note Guarantee pursuant to this Section
4.20, except a discharge or release by or as a result of payment under
such Guarantee.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets. (a) The
Company shall not, directly or indirectly consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or
sell, assign, transfer, convey or otherwise dispose of all or substantially
all of the properties and assets of the Company and its Restricted
Subsidiaries, taken as a whole, in one or more related transactions, to
another Person or Persons, unless:
(i) either: (A) the Company is the surviving corporation; or (B) the
Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, conveyance
or other disposition shall have been made (x) is a corporation organized
or existing under the laws of the United States, any state thereof or the
District of Columbia and (y) assumes all the obligations of the Company
under the Notes, this Indenture, and the Registration Rights Agreement
pursuant to agreements reasonably satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction no Default
or Event of Default exists;
(iii) immediately after giving effect to such transaction on a pro
forma basis, the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition shall have
been made, shall, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in Section 4.09(a);
(iv) each Guarantor, unless such Guarantor is the Person with which
the Company has entered into a transaction under this Section 5.01, shall
have by amendment to its Note Guarantee confirmed that its Note Guarantee
shall apply to the obligations of the Company or the surviving Person in
accordance with the Notes and this Indenture; and
(v) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of such transaction 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
transaction had not occurred.
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(b) Neither the Company nor any Restricted Subsidiary may, directly
or indirectly, lease all or substantially all of its properties or assets,
in one or more related transactions, to any other Person. Clause (iii)
above of this Section 5.01 shall not apply to any merger, consolidation or
sale, assignment, transfer, lease, conveyance or other disposition of
assets between or among the Company and any of its Restricted
Subsidiaries.
Section 5.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, assignment, transfer, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale, assignment, transfer, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, conveyance or other disposition, the provisions
of this Indenture referring to the "Company" shall refer instead to the
successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. Each of the following is an "Event
of Default":
(i) default for 30 days in the payment when due of interest on, or
Liquidated Damages with respect to, the Notes whether or not prohibited by
Article 10 of this Indenture;
(ii) default in payment when due (whether at maturity, upon
acceleration, redemption or otherwise) of the principal of, or premium, if
any, on the Notes, whether or not prohibited by Article 10 of this
Indenture;
(iii) failure by the Company or any of its Restricted Subsidiaries to
comply with Section 4.10, Section 4.14, Section 4.20(c) or Section 5.01;
(iv) failure by the Company or any of its Restricted Subsidiaries for
60 days after written notice by the Trustee or Holders representing 25% or
more of the aggregate principal amount of Notes outstanding to comply with
any of the other agreements in this Indenture;
(v) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of
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which is Guaranteed by the Company or any of its Restricted Subsidiaries)
whether such Indebtedness or Guarantee now exists, or is created after the
Issue Date, if that default:
(A) is caused by a failure to make any payment when due at the
final maturity of such Indebtedness (a "Payment Default"); or
(B) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which
has been so accelerated, aggregates $25.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries to
pay final judgments (to the extent such judgments are not paid or covered
by insurance provided by a carrier that has acknowledged coverage in
writing and has the ability to perform) aggregating in excess of $25.0
million, which judgments are not paid, discharged or stayed for a period
of 60 days;
(vii) except as permitted by this Indenture, any Note Guarantee shall
be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Guarantor, or
any Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Note Guarantee; and
(viii) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary (or any group of Restricted Subsidiaries that
together would constitute a Significant Subsidiary of the Company),
pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) makes a general assignment for the benefit of its creditors,
or
(D) generally is not paying its debts as they become due; and
(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary (or any group of
Restricted Subsidiaries that together would constitute a Significant
Subsidiary of the Company), in an involuntary case;
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(B) appoints a custodian of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary (or any group of
Restricted Subsidiaries that together would constitute a Significant
Subsidiary of the Company) or for all or substantially all of the
property of the Company or any of its Restricted Subsidiaries that is
a Significant Subsidiary (or any group of Restricted Subsidiaries
that together would constitute a Significant Subsidiary of the
Company), or
(C) orders the liquidation of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary (or any
group of Restricted Subsidiaries that together would constitute a
Significant Subsidiary of the Company);
and the order or decree remains undismissed or unstayed and in effect
for 60 consecutive days.
Section 6.02. Acceleration. In the case of an Event of Default
specified in clause (viii) or (ix) of Section 6.01 with respect to the
Company, any Guarantor or any Significant Subsidiary (or any group of
Restricted Subsidiaries that together would constitute a Significant
Subsidiary of the Company), all outstanding Notes will become due and payable
immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately by notice in writing to the Company specifying the
Event of Default.
In the event of a declaration of acceleration of the Notes because an
Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in clause (v) of Section 6.01
hereof, the declaration of acceleration of the Notes shall be automatically
annulled if the holders of any Indebtedness described in clause (v) of Section
6.01 hereof have rescinded the declaration of acceleration in respect of the
Indebtedness if:
(i) the annulment of the acceleration of Notes would not conflict
with any judgment or decree of a court of competent jurisdiction; and
(ii) all existing Events of Default, except nonpayment of principal
or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived.
In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant
to Section 3.07 hereof, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs prior to February 1,
2010, by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes, prior to February 1, 2010, then
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the premium specified in Section 3.07(b) shall also become immediately due and
payable to the extent permitted by law upon the acceleration of the Notes.
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 Liquidated Damages, if any, and 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 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 any existing
Default or Event of Default and its consequences hereunder (including
rescinding any related acceleration of the payment of the Notes), except a
continuing Default or Event of Default (and any related acceleration of the
payment of the Notes) in the payment of the principal of, premium and
Liquidated Damages, if any, or interest on, the Notes. The Company shall
deliver to the Trustee an Officers' Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of
such consents. In case of any such waiver, the Company, the Trustee and the
Holders shall be restored to their former positions and rights hereunder and
under the Notes, respectively. This Section 6.04 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
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. Subject to Section 2.09, 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 may involve the Trustee in personal liability or
that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes not joining in the giving of such direction, and
the Trustee shall have the right to decline to follow any such direction, if
the Trustee, being advised by counsel, determines that such action so directed
may not be lawfully taken or if the Trustee, in good faith shall by a
Responsible Officer, determine that the proceedings so directed may involve
the Trustee in personal liability; provided that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against any loss or expense caused
by taking such action or following such direction. This Section 6.05 shall be
in lieu of Section 316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.
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Section 6.06. Limitation on Suits. A Holder of a Note may not pursue
a remedy with respect to this Indenture, the Notes or the Note Guarantees
unless:
(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 aggregate 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, if any, and Liquidated
Damages, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01 occurs and is continuing, the Trustee is authorized
to recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal of, premium and Liquidated
Damages, 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
Guarantor (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 securities or 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
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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, premium, if any, and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, premium, if
any, and Liquidated Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders 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.
Section 6.12. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company, any Subsidiary Guarantor, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and
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thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Six or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.15. Record Date. The Company may set a record date for
purposes of determining the identity of Holders entitled to vote or to consent
to any action by vote or consent authorized or permitted by Sections 6.04,
6.05 and 9.02. Unless the Company provides otherwise, such record date shall
be the later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders furnished to the Trustee pursuant to
Section 2.05 prior to such solicitation.
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 person would exercise or use under the
circumstances in the conduct of its own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by 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 (but need
71
not confirm or investigate the accuracy of mathematical calculations or
other facts purported to be stated therein).
(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;
(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 (a), (b), and (c) 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 or assets held in trust by the Trustee need not be
segregated from other funds or assets except to the extent required by
law.
Section 7.02. Rights of Trustee. (a) The Trustee may conclusively
rely upon any document (whether in its original or facsimile form) believed by
it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require (other than in connection with the Exchange
Offer contemplated by Section 2.06(f) unless required by the TIA) an
Officers' 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 Officers' Certificate or Opinion of Counsel. The Trustee
may consult with counsel 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 or
attorney appointed with due care.
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(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 satisfactory to it against
the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(g) Except with respect to Section 4.01, the Trustee shall have no
duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 4. In addition, the Trustee shall not be
deemed to have knowledge of a Default or an Event of Default except (i)
any Default or Event of Default occurring pursuant to Sections 4.01,
6.01(i) or 6.01(ii) or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual
knowledge.
(h) Delivery of reports, information and documents to the Trustee
under Section 4.03 is for informational purposes only and the Trustee's
receipt of the foregoing shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
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 that would require the Trustee
to resign 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. If a Default or Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to the Holders of the Notes a
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notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal
of, premium and Liquidated Damages, if any, or interest on any Note, the
Trustee may withhold the notice if and so long as the board of directors, the
executive committee or 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 the Holders of the Notes. Within
60 days after each May 15 beginning with the May 15 following the Issue Date,
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 ss. 313(a) (but if no event described in TIA ss. 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
the 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 ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any
securities exchange or of any delisting thereof.
Section 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder. 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
and any taxes or other expenses incurred by a trust created pursuant to Section
8.04 hereof.
The Company shall indemnify the Trustee and its agents against any
and all losses, liabilities, claims, damages or expenses (including
compensation, fees, disbursements and expenses of Trustee's agents and
counsel) 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 is judicially determined to
have been caused by to its own 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.
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To secure the Company's payment obligations in this Section 7.07, 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. The Trustee's right to receive payment of any
amounts due under this Section 7.07 shall not be subordinated to any other
liability or Indebtedness of the Company.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(viii) or (ix) 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 ss. 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 7.08.
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 a
majority in principal amount of the 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 ▇▇▇▇▇▇▇ 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 at the expense of the Company 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.
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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 ▇▇▇▇▇▇, 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 federal or state authorities and that
has a combined capital and surplus of at least $50 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 ▇▇.▇▇. 310(a)(1), (2) and (5). The Trustee is subject to
TIA ss. 310(b); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company are outstanding, if the requirements for such exclusion set
forth in TIA ss. 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee is subject to TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated therein. The Trustee hereby
waives any right to set off any claim that it may have against the Company in
any capacity (other than as Trustee and Paying Agent) against any of the
assets of the Company held by the Trustee; provided, however, that if the
Trustee is or becomes a lender of any other Indebtedness permitted hereunder
to be pari passu with the Notes, then such waiver shall not apply to the
extent of such Indebtedness.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND DISCHARGE
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 Officers' Certificate, at any time, elect to
have either Section 8.02 or Section 8.03 hereof be
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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
8.01, 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 and all obligations of the
Guarantors shall be deemed to have been discharged with respect to their
obligations under the Note Guarantees on the date the conditions set forth
below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes and Note Guarantees, respectively, which shall thereafter be deemed to
be "outstanding" only for the purposes of Section 8.08 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 clauses,
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 of, premium and Liquidated
Damages, 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.
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
and each of the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from their respective
obligations under the covenants set forth in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20, hereof with
respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 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, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, clauses (i) through (iii) of Section 6.01 and
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clauses (v) through (vii) of Section 6.01 hereof shall cease to operate and
not constitute Events of Default.
Section 8.04. Conditions to Legal Defeasance 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 shall irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium
and Liquidated Damages, if any, and interest on the outstanding Notes on
the Stated Maturity or on the applicable redemption date, as the case may
be, and the Company shall specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the Issue Date, 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 shall not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and shall 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;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the outstanding
Notes shall not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and shall 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 either (i) on the date of such deposit, or (ii) insofar as an
Event of Default set forth in Section 6.01(viii) shall have occurred and
be continuing, at any time in the period ending on the 123rd 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 any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, (i) assuming no intervening bankruptcy of the
Company or any Guarantor
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between the date of deposit and the 123rd day following the deposit and
assuming that no Holder is an "insider" of the Company under applicable
bankruptcy law, after the 123rd day following the deposit, the trust funds
shall not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law and
(ii) the creation of the defeasance trust does not violate the Investment
Company Act of 1940;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over any other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company or others;
(h) if the Notes are to be redeemed prior to their Stated Maturity,
the Company shall have delivered to the Trustee irrevocable instructions
to redeem all of the Notes on the specified redemption date; and
(i) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent, including, without limitation, the conditions set forth in this
Section 8.04, provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Satisfaction and Discharge of Indenture. This Indenture
shall be discharged and shall cease to be of further effect as to all Notes
issued hereunder when:
(i) either:
(A) all Notes that have been authenticated (except lost, stolen
or destroyed Notes that have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee
for cancellation; or
(B) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a
notice of redemption or otherwise or will become due and payable
within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and Liquidated Damages,
if any, and accrued interest to the date of maturity or redemption;
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or
any Guarantor is a party or by which the Company or any Guarantor is
bound;
79
(iii) the Company or any Guarantor has paid or caused to be paid all
sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case may
be.
In addition, the Company must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Section 8.06. Survival of Certain Obligations. Notwithstanding
Sections 8.02, 8.03 and 8.05, any obligations of the Company and the
Guarantors in Sections 2.03 through 2.16 (excluding Sections 2.08 and 2.14),
6.07, 7.07, 7.08, and 8.07 through 8.11 shall survive until the Notes have
been paid in full. Thereafter, any obligations of the Company and the
Guarantors in Sections 7.07, 8.07, 8.08 and 8.10 shall survive such
satisfaction and discharge. Nothing contained in this Article Eight shall
abrogate any of the obligations or duties of the Trustee under this Indenture.
Section 8.07. Acknowledgment of Discharge by Trustee. After the
conditions of Section 8.02, 8.03 or 8.05 have been satisfied, the Trustee upon
written request shall acknowledge in writing the discharge of all of the
Company's obligations under this Indenture except for those surviving
obligations specified in this Article Eight.
Section 8.08. Deposited Money and Cash Equivalents to Be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 8.09 hereof, all
money and non-callable Cash Equivalents (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.08, 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, premium, if any, and Liquidated Damages, 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 Cash
Equivalents deposited pursuant to Section 8.04(a) 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 Cash Equivalents 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
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Section 8.04 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 8.09. Repayment to Company. Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium and Liquidated Damages, if any, and
interest on any Note and remaining unclaimed for two years after such
principal, and premium and Liquidated Damages, if any, and 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 shall be repaid to the Company.
Section 8.10. Indemnity for Government Securities. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest, if any, received on such U.S. Government Obligations.
Section 8.11. 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.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes. Notwithstanding
Section 9.02 of this Indenture, without the consent of any Holder of Notes,
the Company, the Guarantors and the Trustee may amend or supplement this
Indenture, or the Notes or the Note Guarantees:
(a) to cure any ambiguity, defect, error or inconsistency;
81
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's or any Guarantor's
obligations to Holders of Notes in the case of a merger or consolidation
or sale of all or substantially all of the assets of the Company or of
such Guarantor;
(d) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the
legal rights under this Indenture of any such Holder;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture
Act;
(f) to comply with the requirements of Section 4.20;
(g) to evidence and provide for the acceptance of appointment by a
successor Trustee, or
(h) to provide for the issuance of Additional Notes in accordance
with this Indenture.
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(b) hereof stating that such amended or supplemental
Indenture complies with this Section 9.01, 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
4.14 hereof), the Notes or the Note Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including, without limitation, consents obtained
in connection with a purchase of, or tender offer or exchange offer for,
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default 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 (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, Notes).
Without the consent of the Holders of at least 75% in principal amount of the
Notes then outstanding voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender
offer or exchange offer for, the Notes), an amendment or waiver may not amend
or modify any of the provisions of this Indenture or the related definitions
affecting the subordination or ranking of the Notes or any Note Guarantee in
any manner adverse to the holders of the Notes or any Note Guarantee. Section
2.08 hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
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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(b) hereof stating that any such amended or supplemental Indenture
complies with this Section 9.02, 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 9.02
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, 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 of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions, or waive any payment, with respect to the
redemption of the Notes;
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest or Liquidated Damages, if any, on the
Notes (except a rescission of acceleration of the Notes by the Holders of
at least a majority in aggregate principal amount of the Notes and a
waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than U.S. dollars;
(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 or premium or Liquidated Damages, if
any, on the Notes;
83
(g) release any Guarantor from any of its obligations under its Note
Guarantee of these Notes or this Indenture, except in accordance with the
terms of this Indenture;
(h) impair the right to institute suit for the enforcement of any
payment on or with respect to the Notes or the Note Guarantees;
(i) amend, change or modify the obligation of the Company to make and
consummate an Asset Sale Offer with respect to any Asset Sale in
accordance with Section 4.10 after the obligation to make such an Asset
Sale Offer has arisen, or the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control
in accordance with Section 4.14 after such Change of Control has occurred,
including, in each case, amending, changing or modifying any definition
relating thereto;
(j) except as otherwise permitted under Section 5.01 and Article 11,
consent to the assignment or transfer by the Company or any Guarantor of
any of their rights or obligations under this Indenture; or
(k) make any change in Section 6.04 or 6.07 hereof or 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.
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 such Holder of a Note and every subsequent Holder
of a Note or portion of a Note that evidences the same debt as the consenting
▇▇▇▇▇▇'s Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke
the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes. The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note 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 or Note 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 or Note until the Board of Directors
approves it. In executing any amended or supplemental indenture or
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Note, 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 11.04 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. The Trustee may, but shall not
be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's rights, duties or immunities under this Indenture or
otherwise. In signing any amendment, supplement or waiver, the Trustee shall
be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate. The Company agrees, and each
Holder by accepting a Note agrees, that the Indebtedness evidenced by the
Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt (whether outstanding on the Issue Date or
hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
Section 10.02. Liquidation; Dissolution; Bankruptcy. The holders of
Senior Debt of the Company shall be entitled to receive payment in full in
cash or Cash Equivalents of all Obligations due in respect of Senior Debt of
the Company (including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Debt of the Company
whether or not an allowed claim) before the Holders of Notes shall be entitled
to receive any payment with respect to the Notes (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments made from the
trust pursuant to Article 8 hereof), in the event of any distribution to
creditors of the Company in connection with (a) any liquidation or dissolution
of the Company; (b) any bankruptcy, reorganization, insolvency, receivership
or similar proceeding relating to the Company or its property; (c) any
assignment by the Company for the benefit of its creditors; or (d) any
marshaling of the Company's assets and liabilities.
Section 10.03. Default on Designated Senior Debt. The Company shall
not make any payment in respect of the Notes (except in Permitted Junior
Securities or from the trust pursuant to Article 8 hereof) if:
(a) a payment default on Designated Senior Debt of the Company occurs
and is continuing; or
(b) any other default (a "nonpayment default") occurs and is
continuing on any series of Designated Senior Debt of the Company that
permits holders of that series of Designated Senior Debt of the Company to
accelerate its maturity and the Trustee receives a notice of such default
(a "Payment Blockage Notice") from the Company or (i) with respect to
Designated Senior Debt incurred pursuant to the Credit Agreement, the
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agent for the lenders thereunder and (ii) with respect to any other
Designated Senior Debt, the holders of such Designated Senior Debt.
(c) Payments on the Notes may and shall be resumed:
(i) in the case of a payment default on Designated Senior Debt of the
Company, upon the date on which such default is cured or waived; and
(ii) in case of a nonpayment default on Designated Senior Debt of the
Company, the earlier of the date on which such default is cured or waived
or 179 days after the date on which the applicable Payment Blockage Notice
is received, unless the maturity of such Designated Senior Debt of the
Company has been accelerated.
(d) No new Payment Blockage Notice may be delivered unless and until:
(i) 360 days have elapsed since the delivery of the immediately prior
Payment Blockage Notice; and
(ii) all scheduled payments of principal, interest and premium and
Liquidated Damages, if any, on the Notes that have come due have been paid
in full in cash.
(e) No nonpayment default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice.
Section 10.04. Acceleration of Securities. If payment of the Notes is
accelerated because of an Event of Default, the Company and the Trustee shall
promptly notify holders of Senior Debt of the acceleration.
Section 10.05. 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 (except in Permitted Junior Securities or from the trust pursuant
to Article 8 hereof) at a time when the payment is prohibited by this Article
and the Trustee or such Holder, as applicable, has actual knowledge that such
payment is prohibited by Article 10 hereof, such payment shall be held by the
Trustee or such Holder, as applicable, in trust for the benefit of the holders
of the Senior Debt of the Company, upon written request of the holders of the
Senior Debt of the Company shall be paid forthwith over and delivered, to the
holders of Senior Debt as their interests may appear or their proper
Representative, 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 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
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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 10.06. Notice by the Company. The Company shall promptly
notify the Trustee and the Paying Agent in writing of any facts known to the
Company that would cause a payment of any Obligations with respect to the
Notes to violate this Article 10, but failure to give such notice shall not
affect the subordination of the Notes to the Senior Debt as provided in this
Article 10.
Section 10.07. Subrogation. After all Senior Debt is paid in full and
until the Notes are paid in full, Holders of Notes shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders
of Notes have been applied to the payment of Senior Debt. A distribution made
under this Article 10 to holders of Senior Debt that otherwise would have been
made to Holders of Notes is not, as between the Company and Holders, a payment
by the Company on the Notes.
Section 10.08. Relative Rights. This Article 10 defines the relative
rights of Holders of Notes and holders of Senior Debt. Nothing in this
Indenture shall:
(a) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(b) affect the relative rights of Holders of Notes and creditors of
the Company other than their rights in relation to holders of Senior Debt;
or
(c) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal of
or interest on a Note on the due date, the failure is still a Default or Event
of Default.
Section 10.09. Subordination May Not Be Impaired by the Company. No
right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.
Section 10.10. 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
87
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 10.11. Rights of Trustee and Paying Agent. Notwithstanding
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
five 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. 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.
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.
Section 10.12. Authorization to Effect Subordination. Each Holder of
Notes, by the Holder's acceptance thereof, authorizes and directs the Trustee
on such ▇▇▇▇▇▇'s behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article 10, and appoints
the Trustee to act as such ▇▇▇▇▇▇'s attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.09 hereof
at least 30 days before the expiration of the time to file such claim, the
lenders under the Credit Agreement are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
ARTICLE 11
NOTE GUARANTEES
Section 11.01. Guarantee. Subject to this Article 11 each of the
Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:
(a) (i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful (subject in all cases to any applicable grace
period provided herein), and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof;
and (ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations,
88
that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and
not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Notes with
respect to this Indenture, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Subject to Section 6.06 hereof and to the extent permitted by
applicable law, each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenant that this Note Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian,
trustee, liquidator or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(d) Each Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 6 hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as
provided in Article 6 hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of
such right does not impair the rights of the Holders under the Note
Guarantee.
Section 11.02. Subordination of Note Guarantee. The Obligations of
each Guarantor under its Note Guarantee pursuant to this Article 11 shall be
subordinated to the Guarantee of any Senior Debt of such Guarantor on the same
basis as the Notes are subordinated to Senior Debt of the Company. For the
purposes of the foregoing sentence, the Trustee and the Holders shall have the
right to receive and/or retain payments by any of the Guarantors only at such
times as they may receive and/or retain payments in respect of the Notes
pursuant to this Indenture, including Article 10 hereof.
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Section 11.03. Limitation on Guarantor Liability. Each Guarantor, and
by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and
the Guarantors hereby irrevocably agree that the obligations of such Guarantor
shall, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.04. Execution and Delivery of Note Guarantee. To evidence
its Note Guarantee set forth in Section 11.01, each Guarantor hereby agrees
that a notation of such Note Guarantee substantially in the form included in
Exhibit D attached hereto shall be endorsed by an Officer of such Guarantor on
each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set
forth in this Indenture on behalf of the Guarantors.
Section 11.05. Releases Following Sale of Assets. Any Guarantor shall
be released and relieved of any obligations under its Note Guarantee, (a) in
connection with any sale of all of the Capital Stock of that Guarantor
(including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) an Affiliate of the
Company, if the sale of all of such Capital Stock of that Guarantor complies
with Section 4.10 hereof, including the application of the Net Proceeds
therefrom; (b) if the Company designated such Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with this Indenture; or (c) solely in
the case of a Note Guarantee created pursuant to Section 4.20(a), upon the
release or discharge of the Guarantee which resulted in the creation of such
Note Guarantee pursuant to Section 4.20, except a discharge or release by or
as a result of payment under such Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article Eleven.
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Section 11.06. Additional Guarantors. The Company covenants and
agrees that it shall cause any Person which becomes obligated to become a
Guarantor, pursuant to the terms of Section 4.20, to execute a supplemental
indenture substantially in the form of Exhibit E hereto and any other
documentation requested by the Trustee satisfactory in form to the Trustee in
accordance with Section 4.20 pursuant to which such Restricted Subsidiary
shall guarantee the obligations of the Company under the Notes and this
Indenture in accordance with this Article Eleven with the same effect and to
the same extent as if such Person had been named herein as a Subsidiary
Guarantor.
Section 11.07. Notation Not Required. Neither the Company nor the
Guarantors shall be required to make a notation on the Notes to reflect any
Note Guarantee or any release, termination or discharge thereof.
Section 11.08. Successors and Assigns. This Article Eleven shall be
binding upon the Guarantors and each of their successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges conferred upon that party in
this Indenture and in the Notes shall automatically extend to and be vested in
such transferee or assigns, all subject to the terms and conditions of this
Indenture.
Except as set forth in Article 4 and 5 hereof, and notwithstanding
the provisions of this Section, nothing contained in this Indenture shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or will prevent the sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
Section 11.09. No Waiver. Neither a failure nor a delay on the part
of either the Trustee or the Holders in exercising any right, power or
privilege under this Article Eleven shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. The rights, remedies and benefits
of the Trustee and the Holders herein expressly specified are cumulative and
are not exclusive of any other rights, remedies or benefits which either may
have under this Article Eleven at law, in equity, by statute or otherwise.
Section 11.10. Modification. No modification, amendment or waiver of
any provision of this Article Eleven, nor the consent to any departure by the
Guarantor therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other or further notice or demand in the same, similar or
other circumstance.
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ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls. This Indenture is
subject to the provisions of the TIA that are required to be a part of this
Indenture, and shall, to the extent applicable, be governed by such
provisions. If any provision of this Indenture modifies any TIA provision that
may be so modified, such TIA provision shall be deemed to apply to this
Indenture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.
The provisions of TIA ss. 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 12.02. Notices. Any notice or communication by the Company,
any Guarantor or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address.
If to the Company and/or any Guarantor:
Rayovac Corporation
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Trustee:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇- ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
The Company, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
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All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: (i) at the time delivered by hand, if
personally delivered; (ii) five Business Days after being deposited in the
mail, postage prepaid, if mailed; (iii) when answered back, (iv) if telexed;
when receipt acknowledged, if telecopied; and (v) 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 ss. 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect
in it 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 12.03. Communication by Holders of Notes with Other Holders
of Notes. Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection
of TIA ss. 312(c).
Section 12.04. 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 (other than in connection with the Exchange Offer
contemplated by Section 2.06(f) or under Section 2.02 hereof unless required
by the TIA), the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 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;
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied; and
(c) where applicable, a certificate or opinion by an independent
certified public accountant satisfactory to the Trustee that complies with
TIA ss. 314(c)(3).
Section 12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss. 314(e) and
shall include:
93
(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
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 12.06. 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 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders. No director, officer, employee, agent, manager,
member, incorporator, stockholder or other equityholder of the Company or any
Guarantor, as such, shall have any liability for any obligations of the
Company or the Guarantors under the Notes, the Exchange Notes, the Note
Guarantees, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws.
Section 12.08. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
NOTE GUARANTEES.
Section 12.09. 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.
All agreements of each Guarantor in this Indenture shall bind its successors.
Section 12.10. 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. All agreements of each
Guarantor in this Indenture shall bind its successors.
Section 12.11. 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 12.12. 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.
94
Section 12.13. 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.
[Signatures on following page]
95
IN WITNESS WHEREOF, the parties have executed this Indenture as of
February 7, 2005.
RAYOVAC CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
ROV Holding, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
Rovcal, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
96
UNITED INDUSTRIES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
WPC BRANDS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
SYLORR PLANT CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
GROUND ZERO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
NU-GRO US HOLDCO CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
97
NU-GRO AMERICA CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
IB NITROGEN INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
NU-GRO TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
UNITED PET GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
DB ONLINE, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
SOUTHERN CALIFORNIA FOAM, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
98
AQ HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
AQUARIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
PERFECTO HOLDING CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
AQUARIUM SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
PERFECTO MANUFACTURING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
JUNGLE TALK INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
99
PETS `N PEOPLE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
U.S. BANK NATIONAL
ASSOCIATION, as trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
100
EXHIBIT A
FORM OF NOTE
[Face of Note]
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
FOREIGN SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE
AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON OF THIS NOTE) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
A-1
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRANSFER AGENT. THIS LEGEND SHALL BE REMOVED UPON THE REQUEST OF A HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[If Temporary Regulation S Global Note- THE NOTE IS A TEMPORARY REGULATION S
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. EXCEPT
IN THE CIRCUMSTANCES DESCRIBED IN SECTION 2.06 OF THE INDENTURE, NO TRANSFER OR
EXCHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL NOTE MAY BE MADE FOR AN
INTEREST IN THE RESTRICTED GLOBAL NOTE. NO EXCHANGE OF AN INTEREST IN THIS
TEMPORARY REGULATION S GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN THE PERMANENT
REGULATION S GLOBAL NOTE EXCEPT (A) ON OR AFTER THE TERMINATION OF THE
DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")) AND (B) UPON DELIVERY OF THE
OWNER SECURITIES CERTIFICATION AND THE TRANSFEREE SECURITIES CERTIFICATION
RELATING TO SUCH INTEREST IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.
UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING OF THE NOTES, AN OFFER OR
SALE OF THE NOTES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE
SECURITIES ACT OF 1933, AS AMENDED) MAY VIOLATE THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OF 1933, AS AMENDED IF SUCH OFFER OR SALE IS MADE
OTHERWISE THAN IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.]
A-2
[If Restricted Global Note - CUSIP Number 755081 AE6/ISIN Number US755081AE62]
[If Temporary Regulation S Global Note or Regulation S Global Note - CUSIP
Number U75320 AB4/ISIN Number USU75320AB47]
No.
---
**$_________**
RAYOVAC CORPORATION
7 3/8% Senior Subordinated Notes due 2015
Rayovac Corporation (the "Company"), for value received, promises to
pay to CEDE & Co., or its registered assigns, the principal sum of [Amount of
Note] $______________ Dollars on February 1, 2015.
Interest Payment Dates: February 1 and August 1 of each year, starting on
August 1, 2005.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or
by facsimile by its duly authorized officers.
RAYOVAC CORPORATION
By:
-------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 7 3/8% Senior Subordinated Notes due 2015 referred to in
the within-mentioned Indenture.
Dated:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------
Authorized Signatory
A-4
[Reverse Side of Note]
RAYOVAC CORPORATION
7 3/8% Senior Subordinated Notes due 2015
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal
amount and premium, if any, of this Note at 7 3/8% per annum from the date
hereof until Maturity and shall pay the Liquidated Damages, if any, payable
pursuant to Section 5 of the Registration Rights Agreement referred to below.
The Company shall pay interest and Liquidated Damages, if any, semi-annually on
February 1 and August 1 of each year, or if any such day is not a Business Day,
on the next succeeding Business Day (each an "Interest Payment Date"). Interest
on the Notes shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that
if there is no existing Default in the payment of interest, and if this Note is
authenticated between a Record Date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be August 1, 2005. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest and Liquidated Damages (without regard to
any applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the Record Date
immediately preceding the Interest Payment Date, even if such Notes are
canceled after such Record Date and on or before such Interest Payment Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
Liquidated Damages, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Liquidated Damages,
if any, may be made by check mailed to the Holders at their addresses set forth
in the register of Holders, and provided that payment by wire transfer of
immediately available funds shall be required with respect to principal of and
interest, premium and Liquidated Damages on, all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions to
the Company or the Paying Agent. Such payment shall be in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
A-5
3. Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture dated
as of February 7, 2005 (the "Indenture") among the Company, the Guarantors and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
The Indenture pursuant to which this Note is issued provides that an unlimited
aggregate principal amount of Additional Notes may be issued thereunder.
5. Optional Redemption. (a) Except as set forth in paragraph 5 (b)
below, the Notes shall not be redeemable at the Company's option prior to
February 1, 2010. Thereafter, the Company may redeem all or a part of these
Notes, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period
beginning on February 1 of the years indicated below:
Year Percentage
---- ----------
2010............................................... 103.688%
2011............................................... 102.458%
2012............................................... 101.229%
2013 and thereafter................................ 100.000%
(b) At any time prior to February 1, 2008, the Company may on one
or more occasions redeem up to 35% of the aggregate principal amount of
Notes at a redemption price of 107.375% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the redemption date, with the net cash proceeds of one or more Equity
Offerings of the Company; provided that at least 65% of the aggregate
principal amount of Notes remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by the Company or its
Subsidiaries); and such redemption shall occur within 45 days of the date
of the closing of such Equity Offering.
6. Repurchase at Option of Holder. (a) If a Change of Control
occurs, each Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase (the "Change of
Control Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and which shall
A-6
be no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date"), pursuant to the
procedures required by the Indenture and described in such notice;
(b) Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds at its option: (i) to
repay Senior Debt and, if the Senior Debt being repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto; or
(ii) to purchase Replacement Assets or make a capital expenditure in or that
is used or useful in a Permitted Business. Pending the final applications of
any such Net Proceeds, the Company may temporarily reduce revolving credit
borrowings or otherwise invest such Net Proceeds in any manner that is not
prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the preceding paragraph will constitute
"Excess Proceeds." Within 10 days after the aggregate amount of Excess
Proceeds exceeds $20.0 million, the Company will make an offer (an "Asset Sale
Offer") to all Holders of Notes and all holders of other Indebtedness that is
pari passu with the Notes or any Note Guarantee containing provisions similar
to those set forth in the Indenture with respect to offers to purchase with
the proceeds of sales of assets to purchase the maximum principal amount of
Notes and such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds at an offer price in cash equal to 100% of the principal
amount thereof of the Notes and such other pari passu Indebtedness plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and such other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and
such other pari passu Indebtedness to be purchased on a pro rata basis based
on the principal amount of Notes and such other pari passu Indebtedness
tendered. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
7. Selection and Notice of Redemption 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
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 shall deem fair and appropriate. 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:(i) the redemption date;
(ii) the redemption price; (iii) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed and that, after
the redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion of the original Note shall
be issued in the name of the Holder thereof upon cancellation of the
original Note; (iv) the name and address of the Paying Agent; (v) that Notes
called for redemption must be surrendered to the Paying Agent to collect the
redemption price and become due on the date fixed for redemption; (vi) 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; (vii) the paragraph of the Notes and/or Section of the Indenture
pursuant to which the Notes called for redemption are being redeemed; and
A-7
(viii) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
8. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note will be
treated as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture, the Note Guarantees, or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes and Additional Notes, if any,
voting as a single class, and any existing default or compliance with any
provision of the Indenture, the Note Guarantees, or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes, if any, voting as a single class. Without the consent of
the Holders of at least 75% in principal amount of the Notes then outstanding
voting as a single class (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes), an amendment or waiver may not amend or modify any of the provisions
of the Indenture or the related definitions affecting the subordination or
ranking of the Notes or any Note Guarantee in any manner adverse to the
holders of the Notes or any Note Guarantee. Without the consent of any Holder
of a Note, the Indenture, the Note Guarantees, or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the
Notes in case of a merger or consolidation or sale of all or substantially all
of the assets of the Company, 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 under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to allow any
Subsidiary to guarantee the Notes, to provide for the issuance of Additional
Notes in accordance with the limitations set forth in the Indenture, or to
allow any Guarantor to execute a supplemental indenture to the Indenture with
respect to the Notes.
11. Defaults and Remedies. In the case of an Event of Default arising
from certain events of bankruptcy or insolvency, with respect to the Company
or any of its Restricted Subsidiaries that is a Significant Subsidiary, all
outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Notes may
A-8
declare all the Notes to be due and payable immediately by notice in writing
to the Company specifying the Event of Default. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal, premium, if any, or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest,
premium or Liquidated Damages on, or the principal of, the Notes.
In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant
to Section 3.07 of the Indenture concerning optional redemption, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
12. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
13. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Company or any
Guarantor, as such, shall have any liability for any obligations of the
Company or any Guarantor under the Notes, any Note Guarantees, the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws.
14. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
15. Additional Rights of Holders of Restricted Global Notes and
Restricted Certificated Notes. In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of February 7, 2005, among the
Company, the Guarantors and the parties named on the signature pages thereof
or, in the case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have the rights set forth in one or more
registration rights agreements, if any, among the Company, the Guarantors and
the other parties thereto, relating to rights given by the Company to the
purchasers of Additional Notes (collectively, the "Registration Rights
Agreement").
A-9
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without charge
a copy of the Indenture and/or the Registration Rights Agreement. Requests may
be made to:
If to the Company and/or any Guarantor:
Rayovac Corporation
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
A-10
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
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(Insert assignee's legal name)
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
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and irrevocably appoint ______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:_______________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee.*
* Participant is recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[ ] [ ]
Section 4.10 Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $________
Date: _______________ Your Signature:
------------------
(Sign exactly as your name
appears on the Note)
Tax Identification No:________
Signature Guarantee.*
* Participant is recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-12
SCHEDULE OF EXCHANGES OF GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or of another Global Note for an interest in
this Global Note, have been made:
Principal Amount Signature of
Amount of Decrease in Amount of Increase in of this Global Note Authorized Officer
Principal Principal Following such of Trustee or
Date of Exchange of this Global Note of this Global Note decrease (or increase) Note Custodian
---------------- ------------------- ------------------- ---------------------- --------------
A-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Re: 7 3/8% Senior Subordinated Notes due 2015
Reference is hereby made to the Indenture, dated as of February 7,
2005 (the "Indenture"), between Rayovac Corporation, as issuer (the "Company"),
the Guarantors, as defined therein (the "Guarantors") and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[ ] 1. CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO RULE 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Certificated Note is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Certificated Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A
and such Transfer is in compliance with any applicable blue sky securities laws
of any state of the United States. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Certificated Note and in the Indenture and the Securities Act.
[ ] 2. CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (a) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (b) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (c) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (d) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a
B-1
U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Certificated Note shall be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Certificated Note and in the Indenture
and the Securities Act.
[ ] 3. CHECK AND COMPLETE IF TRANSFEREE SHALL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A CERTIFICATED NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Certificated Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
[ ] (a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
[ ] (b) such Transfer is being effected to the Company or a subsidiary
thereof;
or
[ ] (c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
[ ] 4. CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED CERTIFICATED NOTE.
[ ] (a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (a) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (b) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Note shall no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Certificated Notes and in the Indenture.
[ ] (b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (a) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (b) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Note shall no
longer be subject to the restrictions on transfer enumerated in the Private
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Placement Legend printed on the Restricted Global Notes, on Restricted
Certificated Notes and in the Indenture.
[ ] (c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (a) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the
United States and (b) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note shall not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated:_____________,____
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
[ ] (a) a beneficial interest in the:
(i) 144A Global Note (CUSIP ); or
(ii) Regulation S Global Note (CUSIP ); or
[ ] (b) a Restricted Certificated Note.
(q) After the Transfer the Transferee shall hold:
[CHECK ONE]
[ ] (c) a beneficial interest in the:
(i) 144A Global Note (CUSIP ); or
(ii) Regulation S Global Note (CUSIP ); or
(iii) Unrestricted Global Note (CUSIP ); or
(d) a Restricted Certificated Note; or
(e) an Unrestricted Certificated Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Re: 7 3/8% Senior Subordinated Notes due 2015
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of February 7,
2005 (the "Indenture"), between Rayovac Corporation, as issuer (the "Company"),
the Guarantors named therein (the "Guarantors") and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount
of $____________ in such Note[s] or interests (the "Exchange"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED CERTIFICATED NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE.
[ ] (a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "Securities Act"), (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
[ ] (b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED CERTIFICATED NOTE. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Certificated Note, the Owner hereby certifies (i) the Certificated
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Certificated Note is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
[ ] (c) CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a
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Restricted Certificated Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Certificated Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
[ ] (d) CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO
UNRESTRICTED CERTIFICATED NOTE. In connection with the Owner's Exchange of a
Restricted Certificated Note for an Unrestricted Certificated Note, the Owner
hereby certifies (i) the Unrestricted Certificated Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Certificated Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
[ ] 2. EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED CERTIFICATED NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES.
[ ] (a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED CERTIFICATED NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Certificated Note with an equal principal amount, the Owner hereby certifies
that the Restricted Certificated Note is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Certificated Note
issued shall continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Certificated Note and
in the Indenture and the Securities Act.
[ ] (b) CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Certificated Note for a beneficial interest
in the [CHECK ONE] 144A Global Note, Regulation S Global Note, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued shall be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
C-2
[Insert Name of Owner]
By:
-------------------------------
Name:
Title:
Dated: _____________, ____
C-3
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) jointly and severally, unconditionally guarantees,
to the extent set forth in the Indenture and subject to the provisions in the
Indenture dated as of February 7, 2005 (the "Indenture") among Rayovac
Corporation (the "Company"), the Guarantors named therein and U.S. Bank
National Association, as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium and Liquidated Damages (as defined in the
Indenture), if any, and interest on the Notes (as defined in the Indenture),
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, and, to the
extent permitted by law, interest and Liquidated Damages, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and the Indenture are expressly set forth in Article Eleven of the
Indenture and reference is hereby made to the Indenture for the precise terms
of the Note Guarantee. Each Holder of a Note, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the
Trustee, on behalf of such Holder, to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose;
provided, however, that the Indebtedness evidenced by this Note Guarantee shall
cease to be so subordinated and subject in right of payment upon any defeasance
of this Note in accordance with the provisions of the Indenture. Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Indenture.
D-1
IN WITNESS HEREOF, the Guarantors have caused this Notation of Guarantee to be
executed by a duly authorized officer.
[Name of Guarantor]
By:
-----------------------------
Name:
Title:
D-2
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
_____________, among __________________ (the "Guaranteeing Subsidiary"),
Rayovac Corporation, a Wisconsin Corporation, (the "Company"), the Guarantors
(as defined in the Indenture referred to herein) and U.S. Bank National
Association, as Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an indenture (the "Indenture"), dated as of February
7, 2005 providing for the issuance of an unlimited aggregate principal amount
of 7 3/8% Senior Subordinated Notes due 2015 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the
Notes or the obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes shall
be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful (subject in all cases to any applicable grace period
E-1
provided in the Indenture), and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder
shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the
same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal,
whether at Stated Maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the
Notes or the Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance that
might otherwise constitute a legal or equitable discharge or defense
of a guarantor.
(c) Subject to Section 6.06 of the Indenture and to the
extent permitted by applicable law, each Guarantor hereby waives:
diligence presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest,
notice and all demands whatsoever.
(d) Subject to Section 6.06 of the Indenture and to the
extent permitted by applicable law, this Note Guarantee shall not be
discharged except by complete performance of the obligations contained
in the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian,
trustee, liquidator or other similar official acting in relation to
either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Indenture, such
obligations (whether or not due and
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payable) shall forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed
liabilities of the Guarantor that are relevant under any applicable
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the
extent applicable, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such other
Guarantor under Article 11 of the Indenture, the Trustee, the Holders
and the Guarantor irrevocably agree that the obligation of such
Guarantor shall result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent transfer or conveyance.
3. Subordination. The Obligations of the Guaranteeing
Subsidiary under its Note Guarantee pursuant to this Supplemental
Indenture shall be junior and subordinated to the Senior Debt of the
Guaranteeing Subsidiary on the same basis as the Notes are junior and
subordinated to the Senior Debt of the Company. For the purposes of
the foregoing sentence, the Trustee and the Holders shall have the
right to receive and/or retain payments by the Guaranteeing Subsidiary
only at such time as they may receive and/or retain payments in
respect of the Notes pursuant to the Indenture, including Article 10
thereof.
4. Execution and Delivery. Each Guaranteeing Subsidiary
agrees that the Note Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.
5. Guaranteeing Subsidiary May Consolidate, Etc., on Certain
Terms. Except as otherwise provided in Section 11.05 of the Indenture,
a Guarantor may not sell or otherwise dispose of all or substantially
all of its assets, or consolidate with or merge with or into (whether
or not such Guarantor is the surviving Person) another Person unless:
(a) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(b) either:
the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger is a corporation, organized or
existing under (i) the laws of the United States, any state
thereof or the District of Columbia or (ii) the laws of the same
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jurisdiction as that Guarantor and, in each case,
assumes all the obligations of that Guarantor under the
Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture satisfactory
to the Trustee; or
in the case of a Subsidiary Guarantor, such sale or
other disposition (A) complies with Section 4.10 of the
Indenture, including the application of the Net Proceeds
therefrom and (B) is to a Person that is not a Restricted
Subsidiary of the Company.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the obligations and conditions of the Indenture to be
performed by a Guarantor, such successor Person shall succeed to and be
substituted for a Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor Person thereupon may cause to be signed any or
all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
the Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.
Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
6. Releases. (a) Any Guarantor shall be released and relieved of any
obligations under its Note Guarantee, (i) in connection with any sale or other
disposition of all or substantially all of the assets of that Guarantor
(including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary of
the Company, if the sale or other disposition of all or substantially all of
the assets of that Guarantor complies with Section 4.10 of the Indenture,
including the application of the Net Proceeds therefrom; (ii) in connection
with any sale of all of the Capital Stock of a Guarantor to a Person that is
not (either before or after giving effect to such transaction) a Restricted
Subsidiary of the Company, if the sale of all such Capital Stock of that
Guarantor complies with Section 4.10 of the Indenture, including the
application of the Net Proceeds therefrom; (iii) if the Company designates any
Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with the terms hereof; or (iv) in connection with any sale of
Capital Stock of a Guarantor to a Person that results in the Guarantor no
longer being a Subsidiary of the
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Company, if the sale of such Capital Stock of that Guarantor complies with
Section 4.10, including the application of the Net Proceeds therefrom. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made
by the Company in accordance with the provisions of the Indenture, including
without limitation Section 4.10 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under the Indenture
as provided in Article 10 of the Indenture.
7. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
the Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
9. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, ____
[Guaranteeing Subsidiary]
By:
-------------------------------
Name:
Title:
[Name of Guarantor]
By:
-------------------------------
Name:
Title:
RAYOVAC CORPORATION
By:
-------------------------------
Name:
Title:
U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE
By:
-------------------------------
Name:
Title:
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SCHEDULE I
GUARANTORS
ROV Holding, Inc.
Rovcal, Inc.
United Industries Corporation
▇▇▇▇▇▇▇ Company
WPC Brands, Inc.
Sylorr Plant Corp.
Ground Zero, Inc.
Nu-Gro US Holdco Corporation
Nu-Gro America Corp.
IB Nitrogen Inc.
Nu-Gro Technologies, Inc.
United Pet Group, Inc.
DB Online, LLC
Southern California Foam, Inc.
AQ Holdings, Inc.
Aquaria, Inc.
Perfecto Holding Corp.
Aquarium Systems, Inc.
Perfecto Manufacturing, Inc.
Jungle Talk International, Inc.
Pets `N People, Inc.