EXECUTION VERSION
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RATHGIBSON, INC.
11.25% SENIOR NOTES DUE 2014
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INDENTURE
Dated as of February 7, 2006
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The Bank of New York
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1).............................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 7.10
(b)................................................. 7.10
(c)................................................. N.A.
311(a)................................................. 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312(a)................................................. 2.05
(b)................................................. 12.03
(c)................................................. 12.03
313(a)................................................. 7.06
(b)(2).............................................. 7.06; 7.07
(c)................................................. 7.06; 12.02
(d)................................................. 7.06
314(a)................................................. 4.03;12.02; 12.05
(c)(1).............................................. 12.04
(c)(2).............................................. 12.04
(c)(3).............................................. N.A.
(e)................................................. 12.05
(f)................................................. N.A.
315(a)................................................. 7.01
(b)................................................. 7.05; 12.02
(c)................................................. 7.01
(d)................................................. 7.01
(e)................................................. 6.11
316(a) (last sentence)................................. 2.09
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N.A.
(b)................................................. 6.07
(c)................................................. 2.12
317(a)(1).............................................. 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.04
318(a)................................................. 12.01
(b)................................................. N.A.
(c)................................................. 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.......................................................................1
Section 1.02 Other Definitions................................................................24
Section 1.03 Incorporation by Reference of Trust Indenture Act................................25
Section 1.04 Rules of Construction............................................................25
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating..................................................................26
Section 2.02 Execution and Authentication.....................................................27
Section 2.03 Registrar and Paying Agent.......................................................27
Section 2.04 Paying Agent to Hold Money in Trust..............................................28
Section 2.05 Holder Lists.....................................................................28
Section 2.06 Transfer and Exchange............................................................28
Section 2.07 Replacement Notes................................................................41
Section 2.08 Outstanding Notes................................................................41
Section 2.09 Treasury Notes...................................................................41
Section 2.10 Temporary Notes..................................................................41
Section 2.11 Cancellation.....................................................................42
Section 2.12 Defaulted Interest...............................................................42
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee...............................................................42
Section 3.02 Selection of Notes to Be Redeemed or Purchased...................................43
Section 3.03 Notice of Purchase or Redemption.................................................43
Section 3.04 Effect of Notice of Purchase or Redemption.......................................44
Section 3.05 Deposit of Redemption or Purchase Price..........................................44
Section 3.06 Notes Redeemed or Purchased in Part..............................................45
Section 3.07 Optional Redemption..............................................................45
Section 3.08 Mandatory Redemption.............................................................46
Section 3.09 Offer to Purchase by Application of Excess Proceeds..............................46
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.................................................................48
Section 4.02 Maintenance of Office or Agency..................................................48
Section 4.03 Reports..........................................................................48
Section 4.04 Compliance Certificate...........................................................50
Section 4.05 Taxes............................................................................50
Section 4.06 Stay, Extension and Usury Laws...................................................51
Section 4.07 Restricted Payments..............................................................51
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries...................55
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.......................57
Section 4.10 Asset Sales......................................................................61
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Section 4.11 Transactions with Affiliates.....................................................63
Section 4.12 Liens............................................................................64
Section 4.13 Business Activities..............................................................65
Section 4.14 Corporate Existence..............................................................65
Section 4.15 Offer to Repurchase Upon Change of Control.......................................65
Section 4.16 Limitation on Sale and Leaseback Transactions....................................67
Section 4.17 Payments for Consent.............................................................67
Section 4.18 Additional Note Guarantees.......................................................67
Section 4.19 Designation of Restricted and Unrestricted Subsidiaries..........................68
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.........................................68
Section 5.02 Successor Corporation Substituted................................................69
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default................................................................70
Section 6.02 Acceleration.....................................................................71
Section 6.03 Other Remedies...................................................................72
Section 6.04 Waiver of Past Defaults..........................................................72
Section 6.05 Control by Majority..............................................................72
Section 6.06 Limitation on Suits..............................................................72
Section 6.07 Rights of Holders of Notes to Receive Payment....................................73
Section 6.08 Collection Suit by Trustee.......................................................73
Section 6.09 Trustee May File Proofs of Claim.................................................73
Section 6.10 Priorities.......................................................................74
Section 6.11 Undertaking for Costs............................................................74
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee................................................................74
Section 7.02 Rights of Trustee................................................................75
Section 7.03 Individual Rights of Trustee.....................................................76
Section 7.04 Trustee's Disclaimer.............................................................76
Section 7.05 Notice of Defaults...............................................................76
Section 7.06 Reports by Trustee to Holders of Notes...........................................76
Section 7.07 Compensation and Indemnity.......................................................77
Section 7.08 Replacement of Trustee...........................................................78
Section 7.09 Successor Trustee by Merger, etc.................................................78
Section 7.10 Eligibility; Disqualification....................................................79
Section 7.11 Preferential Collection of Claims Against Company................................79
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.........................79
Section 8.02 Legal Defeasance and Discharge...................................................79
Section 8.03 Covenant Defeasance..............................................................80
Section 8.04 Conditions to Legal or Covenant Defeasance.......................................80
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions..........................................................................81
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Section 8.06 Repayment to Company.............................................................82
Section 8.07 Reinstatement....................................................................82
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes..............................................82
Section 9.02 With Consent of Holders of Notes.................................................83
Section 9.03 Compliance with Trust Indenture Act..............................................85
Section 9.04 Revocation and Effect of Consents................................................85
Section 9.05 Notation on or Exchange of Notes.................................................85
Section 9.06 Trustee to Sign Amendments, etc..................................................85
ARTICLE 10
NOTE GUARANTEES
Section 10.01 Guarantee........................................................................85
Section 10.02 Limitation on Guarantor Liability................................................86
Section 10.03 Execution and Delivery of Note Guarantee.........................................87
Section 10.04 Guarantors May Consolidate, etc., on Certain Terms...............................87
Section 10.05 Releases.........................................................................88
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.......................................................89
Section 11.02 Application of Trust Money.......................................................89
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.....................................................90
Section 12.02 Notices..........................................................................90
Section 12.03 Communication by Holders of Notes with Other Holders of Notes....................91
Section 12.04 Certificate and Opinion as to Conditions Precedent...............................91
Section 12.05 Statements Required in Certificate or Opinion....................................91
Section 12.06 Rules by Trustee and Agents......................................................92
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.........92
Section 12.08 Governing Law....................................................................92
Section 12.09 No Adverse Interpretation of Other Agreements....................................92
Section 12.10 Successors.......................................................................92
Section 12.11 Severability.....................................................................93
Section 12.12 Counterpart Originals............................................................93
Section 12.13 Table of Contents, Headings, etc.................................................93
Section 12.14 Force Majeure....................................................................93
EXHIBITS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
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Exhibit F FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE dated as of February 7, 2006 between RathGibson, Inc., a
Delaware corporation, and The Bank of New York, as trustee.
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined) of the
11.25% Senior Notes due 2014 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Restricted Subsidiary of, such specified Person;
and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Acquisition" means the transactions contemplated by the Stock Purchase
Agreement dated as of December 6, 2005 among the Company, the sellers named
therein, RGCH Holdings LLC and the representative named therein, and the
financing of such transactions, including the borrowings under the Credit
Agreement and the offering of the Notes.
"Additional Notes" means additional Notes (other than the Initial Notes
and the Exchange Notes) issued under this Indenture in accordance with Sections
2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Premium" means, as calculated by the Company, with respect
to any Note on any redemption date, the greater of:
(1) 1.0% of the principal amount of the Note; or
1
(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of the Note at February 15, 2010, (such redemption
price being set forth in the table appearing in Section 3.07 hereof)
plus (ii) all required interest payments due on the Note through
February 15, 2010 (excluding accrued but unpaid interest to such
redemption date), computed using a discount rate equal to the Treasury
Rate as of such redemption date plus 50 basis points; over
(b) the principal amount of the Note, if greater.
"Applicable Procedures" means, with respect to any transfer, redemption
or exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer, redemption or exchange.
"Asset Acquisition" means, with respect to any Person, (1) an Investment
by such Person or any Restricted Subsidiary of such Person in any third Person
pursuant to which such third Person shall become a Restricted Subsidiary of such
Person or any Restricted Subsidiary of such Person, or shall be merged with or
into such Person or any Restricted Subsidiary of such Person, or (2) the
acquisition by such Person or any Restricted Subsidiary of such Person of the
assets of any third Person (other than a Restricted Subsidiary of such Person)
which constitutes all or substantially all of the assets of such third Person or
comprises any division or line of business of such third Person or any other
properties or assets of such third Person other than in the ordinary course of
business.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole shall be governed by
Section 4.15 hereof and/or Section 5.01 hereof and not by Section 4.10
hereof; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Restricted Subsidiaries (other than directors' qualifying Equity
Interests or Equity Interests required by applicable law to be held by a
Person other than the Company or a Restricted Subsidiary).
Notwithstanding the preceding, none of the following items will be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions
that involves assets having a Fair Market Value of less than $2.0
million;
(2) a transfer of assets between or among the Company and
its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted
Subsidiary of the Company to the Company or to a Restricted Subsidiary
of the Company;
(4) the licensing of intellectual property or other general
intangibles to third persons on customary terms as determined by the
Board of Directors in good faith and the ordinary course of business;
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(5) the sale or disposition in the ordinary course of
business of any property or equipment that has become damaged, worn-out,
obsolete, or otherwise unsuitable or not required for the ordinary
course of business of the Company or its Restricted Subsidiaries;
(6) the sale or other disposition of cash or Cash
Equivalents;
(7) a Restricted Payment that does not violate Section 4.07
hereof or a Permitted Investment;
(8) the sale, lease, sub-lease, license, sub-license,
consignment, conveyance or other disposition of equipment, inventory or
other assets in the ordinary course of business, including leases with
respect to facilities that are temporarily not in use or pending their
disposition, or accounts receivable in connection with the compromise,
settlement or collection thereof;
(9) the creation of a Lien (but not the sale or other
disposition of property subject to such Lien);
(10) the issuance of Equity Interests by a Restricted
Subsidiary of the Company in which the Company's percentage interest
(direct or indirect) in the Equity Interests of such Restricted
Subsidiary, after giving effect to the issuance, is at least equal to
its percentage interest prior thereto;
(11) leases or subleases to third persons not interfering in
any material respect with the business of the Company or any of its
Restricted Subsidiaries; and
(12) the good faith surrender or waiver of contract rights or
the settlement, release or surrender of claims of any kind.
"Attributable Debt" in respect of a sale and leaseback transaction
means, as at the time of determination, the present value of the total
obligations of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP; provided, however, that if such sale and leaseback transaction results in
a Capital Lease Obligation, the amount of Indebtedness represented thereby will
be determined in accordance with the definition of "Capital Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
3
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the
managing member or members or any controlling committee or Board of
Directors of such company or of the sole member or of the managing
members thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Borrowing Base" means, as of any date, an amount equal to:
(1) 85% of the face amount of all accounts receivable owned
by the Company and its Restricted Subsidiaries as of the end of the most
recent fiscal quarter preceding such date that were not more than 90
days past due; plus
(2) 55% of the book value of all inventory, net of reserves,
owned by the Company and its Restricted Subsidiaries as of the end of
the most recent fiscal quarter preceding such date.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is to be
made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet prepared in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or
membership interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation
with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality
of the United States government (provided that the full faith and credit
of the United States is pledged in support of those securities) having
maturities of not more than 360 days from the date of acquisition;
4
(3) 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 lender party to the
Credit Agreement or 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 at the time of acquisition;
(4) repurchase obligations with a term of not more than 180
days for underlying securities of the types described in clauses (2) and
(3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having at the time of acquisition one
of the two highest ratings obtainable from Moody's or S&P and, in each
case, maturing within nine months after the date of acquisition;
(6) securities issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and at the time of acquisition thereof, having one
of the two highest ratings obtainable from either Moody's or S&P;
(7) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (6) of this definition; and
(8) local currencies held by the Company or any of its
Restricted Subsidiaries, from time to time in the ordinary course of
business.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, lease, 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 Subsidiaries taken as a
whole to any "person" (as that term is used in Section 13(d) of the
Exchange Act) other than a Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation), the result of which is that
any "person" (as defined above), other than the Principals and their
Related Parties, becomes the Beneficial Owner, directly or indirectly,
of more than 50% of the Voting Stock of the Company, measured by voting
power rather than number of shares; or
(4) after an initial public offering of the Company or any
direct or indirect parent of the Company, the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors; provided, however, that Principals and their
Related Parties and any limited partners of the Equity Sponsor do not,
at such time, in the aggregate, (a) Beneficially Own, directly or
indirectly, Voting Stock of the Company representing more than 50% of
the total voting power of the Voting Stock of the Company or (b) have
the right or ability by voting power, contract or otherwise to elect or
designate a majority of the Board of Directors of the Company.
"Clearstream" means Clearstream Banking, S.A. and any successor thereto.
5
"Company" means RathGibson, Inc., a Delaware corporation, and any and
all successors thereto.
"Consolidated Cash Flow" means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were deducted
in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of 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
(3) the Fixed Charges of such Person and its Restricted
Subsidiaries for such period, to the extent that such Fixed Charges were
deducted in computing such Consolidated Net Income; plus
(4) an amount equal to imputed principal with respect to
Attributable Debt paid during such period, to the extent that such
imputed principal was deducted in computing such Consolidated Net
Income; plus
(5) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash expenses (excluding any
such non-cash expense to the extent that it represents an accrual of or
reserve for cash expenses in any future period or amortization of a
prepaid cash expense 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
(6) any management fees paid or accrued by the Company to
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. or any of their respective Affiliates in such period
pursuant to the terms of the Management Agreement as in effect on the
date of this Indenture and as described in the Offering Memorandum, or
to Liberty Partners or any of its Affiliates pursuant to the Management
Services Agreement as in effect prior to the Acquisition, to the extent
that any such management fees were deducted in computing such
Consolidated Net Income; plus
(7) cash restructuring and/or nonrecurring charges not to
exceed $2.0 million in any calendar year and not to exceed $4.0 million
in the aggregate; plus
(8) all transaction and restructuring costs incurred during
such period in connection with any Asset Acquisition in an aggregate
amount not to exceed five percent of the total enterprise value of such
Asset Acquisition; plus
(9) any severance payments made to former employees; minus
(10) non-cash items increasing such Consolidated Net Income
for such period, excluding any such items to the extent they represent
(a) the reversal in such period of an accrual of, or cash reserve for,
cash expenses in a prior period, to the extent such accrual or reserve
did not increase Consolidated Cash Flow in a prior period, (b) the
amortization of income that was paid in a prior period or (c) the
accrual of revenue or income consistent with past practice,
6
in each case, on a consolidated basis and determined in accordance with
GAAP.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of accounting
shall be included only to the extent of the amount of dividends or
similar distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person;
(2) solely for the purposes of calculating Consolidated Net
Income to determine the amount of Restricted Payments permitted under
Section 4.07 hereof, the Net Income of any Restricted Subsidiary (other
than a Guarantor) will be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary
or its stockholders;
(3) the cumulative effect of a change in accounting
principles will be excluded;
(4) notwithstanding clause (1) above, the Net Income of any
Unrestricted Subsidiary will be excluded, whether or not distributed to
the specified Person or one of its Subsidiaries;
(5) all goodwill impairment charges will be excluded;
(6) non-cash charges relating to employee benefit or other
management compensation plans of any direct or indirect parent of the
Company (to the extent such non-cash charges relate to plans of any
direct or indirect parent of the Company for the benefit of members of
the Board of Directors of the Company (in their capacity as such) or
employees of the Company and its Restricted Subsidiaries), the Company
or any of its Restricted Subsidiaries or any non-cash compensation
charge arising from any grant of stock, stock options or other
equity-based awards of any direct or indirect parent of the Company (to
the extent such non-cash charges relate to plans of any direct or
indirect parent of the Company for the benefit of members of the Board
of Directors of the Company (in their capacity as such) or employees of
the Company and its Restricted Subsidiaries), the Company or any of its
Restricted Subsidiaries (excluding in each case any non-cash charge to
the extent that it represents an accrual of or reserve for cash expenses
in any future period or amortization of a prepaid cash expense incurred
in a prior period) in each case will be excluded;
(7) any non-cash charges from the application of the
purchase method of accounting in connection with the Acquisition or any
future acquisition will be excluded;
(8) transaction costs and restructuring charges incurred in
connection with the Acquisition will be excluded; and
(9) the amortization of the consideration for any
non-competition agreements entered into in connection with the
Acquisition shall be excluded.
7
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
this Indenture; or
(2) 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 of Directors 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, to be dated as
of February 7, 2006, by and among the Company and General Electric Capital
Corporation, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and, in each case,
as amended, restated, modified, renewed, refunded, replaced (whether upon or
after termination or otherwise, substituted) or refinanced (including by means
of a receivables financing or sales of debt securities to institutional
investors) in whole or in part from time to time, including any agreement
extending the maturity of, refinancing, replacing or otherwise restructuring
(including increasing the amount of available borrowings or letters of credit
thereunder or adding Subsidiaries of the Company as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"Credit Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement), indentures, or commercial paper
facilities, in each case, with banks or other lenders or a trustee 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 or
issuance of notes, in each case, as amended, restated, modified, renewed,
refunded, replaced (whether upon or after termination or otherwise), substituted
or refinanced (including by means of sales of debt securities to institutional
investors) in whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the Notes
issuable or issued in whole or in part in global form, or any successor entity
thereto appointed as Custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A1 hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
8
"Designated Noncash Consideration" means the Fair Market Value of
noncash consideration received by the Company or any of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation delivered to the Trustee.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia or that guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.
"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 offering of Qualified
Capital Stock of the Company or a direct or indirect parent of the Company, as
the case may be.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
to the Registration Rights Agreement and Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth for such term in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Existing Indebtedness" means all Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture.
"Fair Market Value" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of Directors
of the Company (unless otherwise provided in this Indenture).
9
"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 Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, guarantee, repayment, repurchase, redemption, defeasance or other
discharge of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) the Acquisition, future acquisitions, dispositions,
mergers, consolidations and discontinued operations that have been made
by the specified Person or any of its Restricted Subsidiaries, including
through mergers or consolidations, or any Person or any of its
Restricted Subsidiaries acquired by the specified Person or any of its
Restricted Subsidiaries, and including any related financing
transactions and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or subsequent to
such reference period and on or prior to the Calculation Date will be
given pro forma effect (in accordance with Regulation S-X under the
Securities Act), including Pro Forma Cost Saving, whether or not such
Pro Forma Cost Savings complies with Regulation S-X, as if they had
occurred on the first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded (including by adding back the amount
of any attributable Consolidated Cash Flow that was negative);
(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges will not be obligations of
the specified Person or any of its Restricted Subsidiaries following the
Calculation Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation Date will be deemed to have been a Restricted Subsidiary at
all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted Subsidiary
at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest,
the interest expense on such Indebtedness will be calculated as if the
rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligation applicable
to such Indebtedness if such Hedging Obligation has a remaining term as
at the Calculation Date in excess of 12 months).
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
10
(1) 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, imputed interest
with respect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations (but, in calculating Fixed
Charges for the purposes of determining the denominator of Fixed Charge
Coverage Ratio only, excluding any one-time non-cash charges or expenses
associated with the write off of deferred debt issuance costs relating
to (A) Indebtedness that is retired with the proceeds of the Notes
issued on the date of this Indenture or (B) the repayment or retirement
of the Credit Facilities or the Notes); plus
(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest 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
(4) the product of (a) all dividends, whether paid or
accrued and whether or not in cash, on any series of preferred stock of
such Person or any preferred stock of any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in
Equity Interests of the Company (other than Disqualified Stock) or to
the Company or a Restricted Subsidiary of the Company, times (b) a
fraction, the numerator of which is one and the denominator of which is
one minus the then current combined federal, state and local statutory
tax rate of such Person, expressed as a decimal,
in each case, determined on a consolidated basis in accordance with GAAP.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company that
is not 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 and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A1 hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America (including any agency or
instrumentality thereof), and the payment for which the United States pledges
its full faith and credit.
11
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
"Guarantors" means each Subsidiary of the Company that executes a Note
Guarantee in accordance with the provisions of this Indenture, and their
respective successors and assigns, in each case, until the Note Guarantee of
such Person has been released in accordance with the provisions of this
Indenture.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements,
interest rate collar agreements and other agreements or arrangements
designed for the purpose of fixing hedging or swapping interest rate
risk;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange rates or commodity
prices.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) (other than letters of credit issued in respect of trade
payables entered into in the ordinary course, to the extent such
Obligations are cash collateralized or such letters of credit secure
Obligations entered into in the normal course of business of such Person
and such letters of credit are not drawn upon or, if drawn upon, to the
extent any such drawing is reimbursed no later than three business days
following receipt by such Person of a demand for reimbursement);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable
Debt in respect of sale and leaseback transactions;
12
(5) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit,
Attributable Debt and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others secured by
a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any Indebtedness of any other Person.
Notwithstanding the foregoing, in connection with the purchase by the
Company or any Restricted Subsidiary of any business, the term "Indebtedness"
will exclude post-closing payment adjustments to which the seller may become
entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the
closing; provided, however, that at the time of closing, the amount of any such
payment is not determinable and, to the extent such payment thereafter becomes
fixed, determined and undisputed the amount is paid within 60 days thereafter.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest in
a Global Note through a Participant.
"Initial Notes" means the first $200,000,000 aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Bear, ▇▇▇▇▇▇▇ & Co. Inc. and Wachovia Capital
Markets, LLC.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
13
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital
contributions (excluding (i) commission, travel and similar advances to officers
and employees made in the ordinary course of business and (ii) extensions of
credit to customers or advances, deposits or payments to or with suppliers,
lessors or utilities or for workers' compensation, in each case, that are
incurred in the ordinary course of business and recorded as accounts receivable,
prepaid expenses or deposits on the balance sheet of such Person prepared in
accordance with GAAP), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the Company, the
Company will be deemed to have made an Investment on the date of any such sale
or disposition equal to the Fair Market Value of the Company's Investments in
such Subsidiary that were not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.07(b). Except as otherwise provided
in this Indenture, the amount of an Investment will be determined at the time
the Investment is made and without giving effect to subsequent changes in value.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal or its
electronic equivalent in accordance with the Applicable Procedures to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means, 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 such asset.
"Liquidated Damages" means all liquidated damages then owing pursuant to
the Registration Rights Agreement.
"Management Agreement" means that certain management agreement dated the
date of this Indenture among the Company, RGCH Holdings Corp., RGCH Holdings LLC
and ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. or its designated affiliate, as manager.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Income" means, with respect to any specified Person, the net income
(or loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (or loss), together with any related provision
for taxes on such gain (or loss), realized in connection with: (a) any
Asset Sale (without giving effect to the $2.0 million threshold provided
in the definition thereof) or abandonment and reserves relating thereto;
or (b) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries;
14
(2) any extraordinary gain (or loss), together with any
related provision for taxes on such extraordinary gain (or loss); and
(3) any unrealized non-cash gains or losses in respect of
Hedging Obligations (including those resulting from the application of
FAS 133), to the extent that such gains or losses are deducted in
computing Net Income.
"Net Proceeds" means the aggregate cash proceeds 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, including Designated Noncash Consideration, received in
any Asset Sale), net of the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, appraisal and
insurance adjuster fees and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale, taxes paid or payable as a result of the
Asset Sale, in each case, after taking into account without duplication, (1) any
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the assets that were the subject of such Asset Sale, (2) any reserve or
payment with respect to liabilities associated with such asset or assets and
retained by the Company or a Restricted Subsidiary after such sale or other
disposition thereof, including, without limitation, severance costs, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
such transaction, (3) any reserves for adjustment in respect of the sale price
of such asset, and (4) any cash escrows in connection with purchase price
adjustments, reserves or indemnities (until released).
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its
Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a
guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement action
against an Unrestricted Subsidiary) would permit upon notice, lapse of
time or both any holder of any other Indebtedness of the Company or any
of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated
or payable prior to its Stated Maturity; and
(3) as to which (a) the explicit terms provide that there is
no recourse against any assets of the Company or any of its Restricted
Subsidiaries or (b) the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any
of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by each Guarantor of the Company's
obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes subsequently issued under
this Indenture shall be treated as a single class for all purposes under this
Indenture including, without limitation, waivers, amendments, redemptions and
offers to purchase and unless the context otherwise requires, all references to
the Notes shall include the Initial Notes and any Additional Notes.
15
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the Company's offering memorandum, dated
February 1, 2006, used in connection with the initial offering of the Initial
Notes.
"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 12.04 hereof. The counsel may be an employee of or
counsel to the Company or any Subsidiary of the Company.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means any business engaged in by the Company or any
of its Subsidiaries on the date of the original issuance of the Initial Notes
and any business or other activities that are reasonably similar, ancillary,
complementary or related to, or a reasonable extension, development or expansion
of, the businesses in which the Company and its Subsidiaries are engaged on the
date of original issuance of the Initial Notes.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such
Investment:
(a) such Person becomes a Restricted Subsidiary of
the Company; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of
non-cash consideration from (a) an Asset Sale that was made pursuant to
and in compliance with Section 4.10 hereof or (b) a sale or other
disposition of assets not constituting an Asset Sale.
(5) any acquisition of assets or Capital Stock solely in
exchange for the issuance of Equity Interests (other than Disqualified
Stock) of the Company or a direct or indirect parent of the Company;
16
(6) any Investment acquired by the Company or any of its
Restricted Subsidiaries:
(a) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary
in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of a Person or the good faith
settlement of delinquent obligations of a Person or of a
litigation arbitration or other dispute, or
(b) as a result of a foreclosure by the Company or
any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any
secured Investment in default;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to employees made in the ordinary
course of business of the Company or any Restricted Subsidiary of the
Company in an aggregate principal amount not to exceed $1.0 million at
any one time outstanding;
(9) repurchases of the Notes;
(10) any Investment of the Company or any of its Restricted
Subsidiaries existing on the date of this Indenture and any extension,
modification or renewal of such existing Investments, to the extent not
involving any additional Investment other than as the result of the
accrual or accretion of interest or original issue discount or the
issuance of pay-in-kind securities, in each case pursuant to the terms
of such Investments as in effect on the date of this Indenture;
(11) guarantees otherwise permitted by the terms of this
Indenture;
(12) Investments resulting from the acquisition of a Person,
otherwise permitted by this Indenture, which Investments at the time of
such acquisition were held by the acquired Person and were not acquired
in contemplation of the acquisition of such Person;
(13) Investments in joint ventures engaged in a Permitted
Business having an aggregate value (measured on the date 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
(13) since the date of this Indenture not to exceed $5.0 million;
(14) Investments consisting of the licensing or contribution
of intellectual property pursuant to joint marketing arrangements with
other Persons; and
(15) other Investments in any Person other than an Affiliate
of the Company 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 (15) that are at the time
outstanding not to exceed $10.0 million.
"Permitted Liens" means:
(1) Liens on assets of the Company or any of its Restricted
Subsidiaries securing Indebtedness (including Capital Lease Obligations)
or Attributable Debt and other Obligations in an amount when incurred,
together with the aggregate amount of all other Indebtedness and other
17
Obligations at that time outstanding secured by a Lien pursuant to this
clause (1), not to exceed the aggregate amount of Indebtedness and
Attributable Debt that has been incurred and such additional debt as
would be permitted to be incurred at such time, in each case, under
clauses (1), (5), (15) and (18) of the definition of Permitted Debt
and/or securing Hedging Obligations related thereto;
(2) Liens in favor of the Company or the Guarantors;
(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Subsidiary of the Company; provided that such Liens were in existence
prior to and were not incurred in connection with or in the
contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with
the Company or the Subsidiary;
(4) Liens on property (including Capital Stock) existing at
the time of acquisition of the property by the Company or any Subsidiary
of the Company; provided that such Liens were in existence prior to,
such acquisition, and not incurred in contemplation of, such
acquisition;
(5) Liens to secure the performance of tenders, completion
guarantees, statutory obligations, surety or appeal bonds, bids, leases,
performance bonds or other obligations of a like nature incurred in the
ordinary course of business;
(6) Liens to secure Attributable Debt permitted by clause
(4) the definition of Permitted Debt covering only the assets financed
by such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; provided that any reserve or other appropriate provision as
is required in conformity with GAAP has been made therefor;
(9) Liens imposed by law, such as carriers' warehousemen's,
landlords', mechanics', suppliers', materialmen's and repairmen's Liens,
or in favor of customs or revenue authorities or freight forwarders or
handlers to secure payment of custom duties, in each case, incurred in
the ordinary course of business;
(10) survey exceptions, easements or reservations of, or
rights of others for or pursuant to any leases, licenses, rights-of-way,
or other similar agreements or arrangements, development, air or water
rights, sewers, electric lines, telegraph and telephone lines and other
utility lines, pipelines, service lines, railroad lines, improvements
and structures located on, over or under any property, drains, drainage
ditches, culverts, electric power or gas generating or co-generation,
storage and transmission facilities and other similar purposes, or
zoning or other restrictions as to the use of real property which were
not incurred to secure the payment of Indebtedness and that do not in
the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business of such
Person;
(11) Liens created for the benefit of (or to secure) the
Notes (or the Note Guarantees);
(12) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided, however, that
the new Lien shall be limited to all or part of the
18
same property and assets that secured or, under the written agreements
pursuant to which the Indebtedness being refinanced arose, could secure
the original Lien (plus improvements and accessions to, such property or
proceeds or distributions thereof);
(13) Liens incurred by the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed
$5.0 million at any one time outstanding;
(14) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect
of bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods;
(15) Liens incurred or pledges or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security and employee
health and disability benefits, or casualty or liability insurance or
self insurance including any Lien securing letters of credit issued in
the ordinary course of business consistent with past practice in
connection therewith;
(16) judgment and attachment Liens not giving rise to an
Event of Default and notices of lis pendens and associated rights
related to litigation being contested in good faith by appropriate
proceedings and for which adequate reserves have been made in conformity
with GAAP;
(17) Liens securing Hedging Obligations incurred pursuant to
clause (9) of the definition of "Permitted Debt;"
(18) any extension, renewal or replacement, in whole or in
part, of any Lien described in clauses (6), (7), (19), or (20) of the
definition of "Permitted Liens;" provided that any such extension,
renewal or replacement is no more restrictive in any material respect
than the Lien so extended, renewed or replaced and does not extend to
any additional property or assets, in conformity with GAAP;
(19) any interest or title of a lessor, licensor or
sublicensee under any operating lease, license or sublicense, as
applicable; and
(20) Liens in favor of collecting or payor banks having a
right of setoff, revocation, refund or chargeback with respect to money
or instruments of the Company or any Restricted Subsidiary thereof on
deposit with or in possession of such bank.
"Permitted Payments to Parent" means, without duplication as to amounts:
(1) payments to any direct or indirect parent of the Company
to permit such direct or indirect parent to pay reasonable accounting,
legal and administrative expenses of such Person when due, in an
aggregate amount not to exceed $500,000 per annum (or $1.0 million per
annum following the completion of an underwritten public offering of
common stock of any such direct or indirect parent holding company); and
(2) for so long as the Company is a member of a group filing
a consolidated or combined tax return with any direct or indirect parent
of the Company, payments to such direct or indirect parent in respect of
an allocable portion of the tax liabilities of such group that is
attributable to the Company and its Subsidiaries ("Tax Payments") and to
pay franchise or similar
19
taxes and fees of such direct or indirect parent required to maintain
such direct or indirect parent's corporate existence. The Tax Payments
shall not exceed the lesser of (i) the amount of the relevant tax
(including any penalties and interest) that the Company would owe if the
Company were filing a separate tax return (or a separate consolidated or
combined return with its Subsidiaries that are members of the
consolidated or combined group), taking into account any carryovers and
carrybacks of tax attributes (such as net operating losses) of the
Company and such Subsidiaries from other taxable years and (ii) the net
amount of the relevant tax that direct or indirect parent actually owes
to the appropriate taxing authority. Any Tax Payments received from the
Company shall be paid over to the appropriate taxing authority within 60
days of direct or indirect parent's receipt of such Tax Payments or
refunded to the Company.
"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 renew, refund, refinance, replace, defease or
discharge other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness renewed,
refunded, refinanced, replaced, defeased or discharged (plus all accrued
interest on the Indebtedness and the amount of all fees and expenses,
including the amount of any reasonably determined premium and defeasance
costs, incurred in connection therewith and other amounts necessary to
accomplish such refinancing);
(2) such Permitted Refinancing Indebtedness has a final
maturity date equal to or later than the final maturity date of, and has
a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness 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 renewed, refunded, refinanced, replaced, defeased or
discharged; and
(4) such Indebtedness is incurred either by the Company or
by the Restricted Subsidiary who is the obligor on the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Principals" means (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P., a Delaware
limited partnership, or any Affiliate thereof or any fund or account controlled
or managed by or under common control with ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P. or
any Affiliate thereof, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. and its employees, management
and directors, (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇, (iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and (v) C. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Jr.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
20
"Pro Forma Cost Savings" means, with respect to any period, the
reduction in net costs and related adjustments that (i) were directly
attributable to an acquisition that occurred during the four quarter period or
after the end of the four quarter period and on or prior to the Calculation Date
and calculated on a basis that is consistent with Regulation S-X under the
Securities Act as in effect and applied as of the date of this Indenture, (ii)
were actually implemented by the business that was the subject of any such
acquisition within six months after the date of the acquisition and prior to the
Calculation Date that are supportable and quantifiable by the underlying
accounting records of such business or (iii) relate to the business that is the
subject of any such acquisition and that the Company reasonably determines are
probable based upon specifically identifiable actions to be taken within six
months of the date of the acquisition and, in the case of each of (i), (ii) and
(iii), are described, as provided below, in an Officers' Certificate, as if all
such reductions in costs had been effected as of the beginning of such period.
Pro Forma Cost Savings described above shall be accompanied by a certificate
delivered to the Trustee from the Company's chief financial officer that
outlines the specific actions taken or to be taken, the net cost savings
achieved or to be achieved from each such action and that, in the case of clause
(iii) above, such savings have been determined to be probable.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Stock.
"Qualified Proceeds" means any of the following or any combination of
the following:
(1) Cash Equivalents; and
(2) the Fair Market Value of assets that are used or useful
in the Permitted Business; and
(3) the Fair Market Value of the Capital Stock of any Person
engaged primarily in a Permitted Business if, in connection with the
receipt by the Company or any of its Restricted Subsidiaries of such
Capital Stock, such Person becomes a Restricted Subsidiary or such
Person is merged or consolidated into the Company or any Restricted
Subsidiary.
The Fair Market Value of any assets or Capital Stock that are required to be
valued by this definition will be determined by the Board of Directors of the
Company whose resolution with respect thereto will be delivered to the Trustee.
The Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the Fair Market Value exceeds $10.0 million.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of February 7, 2006, among the Company and the other parties named on
the signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements among the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the purchasers of Additional
Notes to register such Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
21
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A1 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 A2 hereto 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.
"Related Party" means:
(1) any controlling stockholder, partners, member, 80% (or
more) owned Subsidiary, or immediate family member (in the case of an
individual) of any Principal; or
(2) any trust, corporation, partnership, limited liability
company or other entity, the beneficiaries, stockholders, partners,
members, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of any one or more Principals
and/or such other Persons referred to in the immediately preceding
clause (1).
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee (or any successor group
of the Trustee) having direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
22
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency and after
giving effect to any voting agreement or stockholders' agreement that
effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or other
business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of
that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are that Person or one
or more Subsidiaries of that Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
▇▇.▇▇. 77aaa-77bbbb).
"Treasury Rate" means, as determined by the Company, as of any
redemption date, the yield to maturity as of such redemption date of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15 (519) that has
become publicly available at least two Business Days prior to the redemption
date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the period from
the redemption date to February 15, 2010; provided, however, that if the period
from the redemption date to February 15, 2010, is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.
"Trustee" means The Bank of New York until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means
the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear and is
not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors, but only to the
extent that such Subsidiary:
23
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party
to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of the
Company;
(3) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries unless such guarantee or credit support is
released upon its designation as an Unrestricted Subsidiary.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any specified Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final
maturity, in respect of the Indebtedness, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such
date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
Section 1.02 Other Definitions.
Defined
in
Term Section
---- -------
"Affiliate Transaction" ..................................... 4.11
"Alternate Offer" ........................................... 4.15
"Asset Sale Offer" .......................................... 3.09
"Authentication Order" ...................................... 2.02
"Change of Control Offer" ................................... 4.15
"Change of Control Payment" ................................. 4.15
"Change of Control Payment Date" ............................ 4.15
"Covenant Defeasance" ....................................... 8.03
"DTC" ....................................................... 2.03
"Event of Default" .......................................... 6.01
"Excess Proceeds" ........................................... 4.10
"incur" ..................................................... 4.09
24
Defined
in
Term Section
---- -------
"Legal Defeasance"........................................... 8.02
"Make-Whole Redemption Date"................................. 3.07
"Offer Amount"............................................... 3.09
"Offer Period"............................................... 3.09
"Paying Agent"............................................... 2.03
"Payment Default" ........................................... 6.01
"Permitted Debt"............................................. 4.09
"Primary Lien"............................................... 4.12
"Purchase Date".............................................. 3.09
"Registrar".................................................. 2.03
"Restricted Payments"........................................ 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes and the Note Guarantees;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the Note
Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein have the meanings so assigned to them either in
the TIA or applicable SEC rule.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
25
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities
Act, the Exchange Act or the TIA will be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC from time
to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibits A1 and A2 hereto.
The Notes may have notations, legends or endorsements required by any law, stock
exchange rule or usage to which the Company is subject. Each Note will be dated
the date of its authentication. The Notes shall be issued in denominations of
$2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are
hereby expressly made, a part of this Indenture and 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 the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially
in the form of Exhibits A1 or A2 hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form will be substantially in the form of
Exhibit A1 hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note will represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions
thereof and transfers of interest therein. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the aggregate principal amount
of outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S will be issued initially in the form of the Regulation S Temporary
Global Note, which will be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of 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 will be terminated upon
the Trustee using its commercially reasonable efforts to receive:
(1) a written certificate from the Depositary, together with
copies of certificates 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 will take delivery of a beneficial ownership interest in a 144A
Global
26
Note or an IAI Global Note bearing a Private Placement Legend, all as
contemplated by Section 2.06(b) hereof); and
(2) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests
in the Regulation S Temporary Global Note will be exchanged for beneficial
interests in the Regulation S Permanent Global Note pursuant to the Applicable
Procedures. Simultaneously with the authentication of the Regulation S Permanent
Global Note, the Trustee will cancel the Regulation S Temporary Global Note. The
aggregate principal amount of the Regulation S Temporary Global Note and the
Regulation S Permanent Global Note 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.
(3) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms
and Conditions of Clearstream Banking" and "Customer Handbook" of
Clearstream will be applicable to transfers of beneficial interests in
the Regulation S Temporary Global Note and the Regulation S Permanent
Global Note that are held by Participants through Euroclear or
Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee or its authenticating agent as provided below. The signature will be
conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed
by at least one Officer (an "Authentication Order"), authenticate Notes for
original issue that may be validly issued under this Indenture, including any
Additional Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as
provided in Section 2.07 hereof.
The Company may, subject to the covenants and the terms of this
Indenture and applicable law, issue Additional Notes and Exchange Notes under
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 will maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar will keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term
27
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company will notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes and the
Trustee hereby agrees to so initially act.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it 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) will have no further liability for the money as Paying Agent, other
than to account to the Trustee and the Company for any funds disbursed. If the
Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA SS. 312(a). If the Trustee is
not the Registrar, the Company will furnish or cause the Registrar to 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 except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice
from the Depositary;
28
(2) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes prior to
(A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B)
under the Securities Act; or
(3) there has occurred and is continuing a Default or Event
of Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act. None of
the Company, the Trustee nor any agent of the Company or the Trustee will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests of a Global Note or
maintaining, supervising or reviewing any records relating to such beneficial
interests. Transfers of beneficial interests in the Global Notes also will
require compliance with either subparagraph (1) or (2) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation S
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)(1).
(2) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(1) above, the transferor of such beneficial interest must
deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a
beneficial interest in another Global
29
Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with
the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given by the Depositary to
the Registrar containing information regarding the
Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred
to in (1) above;
provided that in no event shall Definitive Notes be
issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note
prior to (A) the expiration of the Restricted Period and
(B) 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)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form
of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof.
30
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii)
a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an 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 Definitive
Notes.
31
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Note or to transfer such beneficial interest to
a Person who takes delivery thereof in the form of a Restricted
Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
32
(2) Beneficial Interests in Regulation S Temporary Global
Note to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and (C)
hereof, a beneficial interest in the Regulation S Temporary Global Note
may not be exchanged for a Definitive Note or transferred to a Person
who takes delivery thereof in the form of a Definitive Note prior to (A)
the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B)
under the Securities Act, except in the case of a transfer pursuant to
an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to
a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (i) a Broker-Dealer, (ii) a Person participating in
the distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the
Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive Note,
then, upon satisfaction of the
33
conditions set forth in Section 2.06(b)(2) hereof, the Trustee will
cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the Company
will execute and the Trustee will authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(4) will be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) will not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
34
the Trustee will cancel the Restricted Definitive Note, increase
or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, in
the case of clause (C) above, the Regulation S Global Note, and
in all other cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
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)(2), the Trustee will cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time.
35
Upon receipt of a request for such an exchange or transfer, the Trustee
will cancel the applicable Unrestricted Definitive Note and increase or
cause to be increased the aggregate principal amount of one of the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D)
or (3) above at a time when an Unrestricted Global Note has not yet been
issued, the Company will issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar will register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration
Rights Agreement;
36
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant
to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are
not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes
accepted for exchange in the Exchange Offer by Persons that certify in
the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
37
(g) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes issued
in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a) (1), (2),
(3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")) THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note
or Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) will not bear the Private Placement
Legend.
(2) Global Note Legend. Each Global Note will bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
38
ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
RATHGIBSON, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note will bear a Legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company will execute and the Trustee will authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.02 hereof or at the Registrar's request.
39
(2) No service charge will be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05
hereof).
(3) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
will be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(4) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption of the Notes to be redeemed under Section 3.02 hereof
and ending at the close of business on the day of such mailing;
(B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part;
(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding Interest
Payment Date (as defined in the Note); or
(D) to register the transfer of or to exchange a
Note tendered and not withdrawn in connection with a Change of
Control Offer or an Asset Sale Offer.
(5) 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, premium, Liquidated Damages, if any, and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or
the Company shall be affected by notice to the contrary.
(6) The Trustee will authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(7) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
(8) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers
between or among Depositary Participants or beneficial owners of
interests in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
40
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee, upon receipt of an
Authentication Order, will authenticate a replacement Note if 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, including
reasonable fees and expenses of its counsel and of the Trustee and its counsel.
Every replacement Note issued in accordance with this Section 2.07 is an
additional obligation of the Company and will be entitled to all of the benefits
of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note; however, Notes held by the Company or a Subsidiary of the Company
shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without
41
unreasonable delay, the Company will prepare and the Trustee will authenticate
definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will dispose of
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the disposal of all canceled Notes will be delivered to
the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest, or Liquidated Damages,
if any, on the Notes, it will pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company will notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company will fix or cause
to be fixed each such special record date and payment date; provided that no
such special record date may be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) will mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption or purchase shall occur;
(2) the redemption or purchase date;
(3) the principal amount of Notes to be redeemed or
purchased;
(4) the redemption or purchase price; and
(5) the CUSIP numbers of such Notes.
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The Company may cancel any optional redemption referenced in such
Officers' Certificate if such cancellation takes place (1) at least 30 days in
advance of the redemption date and (2) prior to a notice of redemption being
mailed to any Holder.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase on a pro rata basis except: (i) if the Notes are listed on any national
securities exchange, in compliance with the requirements of the principal
national securities exchange on which the Notes are listed, and (ii) unless
otherwise required by law.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected for purchase or redemption will
be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except
that if all of the Notes of a Holder are to be redeemed or purchased, the entire
outstanding amount of Notes held by such Holder, even if not equal to $2,000 or
a multiple of $1,000 in excess thereof shall be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption or purchase also apply to portions of Notes called
for redemption or purchase.
Section 3.03 Notice of Purchase or Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a purchase or redemption date, the Company will
mail or cause to be mailed, by first class mail, a notice of purchase or
redemption to each Holder whose Notes are to be purchased or redeemed at its
registered address, except that purchase or redemption notices may be mailed
more than 60 days prior to a purchase or redemption date if the notice is issued
in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 11 hereof. Failure to give notice of
redemption, or any defect therein to any Holder selected for redemption shall
not impair or affect the validity of the redemption of any other Note redeemed
in accordance with the provisions of the Indenture.
The notice will identify the Notes to be purchased or redeemed and will
state:
(1) the purchase or redemption date;
(2) the purchase or redemption price;
(3) if any Note is being purchased or redeemed in part, the
portion of the principal amount of such Note to be purchased or redeemed
and that, after the purchase or redemption date upon surrender of such
Note, a new Note or Notes in principal amount equal to the unpurchased
or unredeemed portion of the original Note will be issued in the name of
the Holder of such original Note (unless such unredeemed or unpurchased
portion is equal to less than $2,000 in principal amount) or transferred
by book entry transfer upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
43
(5) that Notes called for purchase or redemption must be
surrendered to the Paying Agent to collect the purchase or redemption
price and become due on the date fixed for redemption or purchase;
(6) that, unless the Company defaults in making such
purchase or redemption payment, interest and Liquidated Damages, if any,
on Notes or portions of Notes called for purchase or redemption ceases
to accrue on and after the purchase or redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for purchase or redemption
are being purchased or redeemed;
(8) the CUSIP numbers of such Notes; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee will give the notice of purchase
or redemption in the Company's name and at its expense; provided, however, that
the Company has delivered to the Trustee, at least 45 days prior to the purchase
or redemption date, an Officers' Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.04 Effect of Notice of Purchase or Redemption.
Once notice of purchase or redemption is mailed in accordance with
Section 3.03 hereof, Notes called for purchase or redemption become irrevocably
due and payable on the purchase or redemption date at the purchase or redemption
price. A notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
On or prior to 10:00 am Eastern Time on any redemption or purchase date,
the Company will deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest and
Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent will promptly, and in any event within two
Business Days after the redemption or purchase date, return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption or purchase price of, and accrued
interest and Liquidated Damages, if any, on, all Notes to be redeemed or
purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for redemption or purchase. If a Note
is redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
44
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered. No Notes in denominations of $2,000 or less shall be redeemed in
part or purchased in part unless all of the Notes held by the Holder are to be
redeemed or purchased.
Section 3.07 Optional Redemption.
(a) At any time prior to February 15, 2009, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of
Notes issued under this Indenture at a redemption price of 111.250% of the
principal amount, plus accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings by the Company or a contribution to the Company's common equity
capital made with the net cash proceeds of one or more Equity Offerings by a
direct or indirect parent of the Company; provided that:
(1) at least 65% of the aggregate principal amount of the
Notes originally issued under this Indenture (excluding the Notes held
by the Company and its Subsidiaries) remains outstanding immediately
after the occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the
closing of such Equity Offering or equity contribution.
(b) At any time prior to February 15, 2010, the Company may also
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days'
prior notice mailed by first-class mail to each Holder's registered address, at
a redemption price equal to 100% of the principal amount of Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption (the "Make-Whole Redemption Date"),
subject to the rights of Holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date.
(c) Except pursuant to clauses (a) and (b) of this Section 3.07, the
Notes will not be redeemable at the Company's option prior to February 15, 2010.
The Company is not prohibited by the terms of this Indenture, however, from
acquiring the Notes by means other than a redemption, whether pursuant to an
issuer tender offer, in open market transactions or otherwise, assuming such
acquisition does not otherwise violate the terms of this Indenture.
(d) On or after February 15, 2010, the Company may redeem all or a
part of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes
redeemed, to the applicable redemption date, if redeemed during the twelve-month
period beginning on February 15 of the years indicated below, subject to the
rights of Holders of Notes on the relevant record date to receive interest on
the relevant interest payment date:
Year Percentage
---- ----------
2010 .................................................... 105.625%
2011 .................................................... 102.813%
2012 and thereafter ..................................... 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
45
(e) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 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 by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase all or any part (equal
to $2,000 or any integral multiple of $1,000 in excess thereof) of that Holder's
Notes (an "Asset Sale Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and
not more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three Business
Days after the termination of the Offer Period (the "Purchase Date"), the
Company will apply all Excess Proceeds (the "Offer Amount") to the purchase of
Notes and such other pari passu Indebtedness (on a pro rata basis, if
applicable) or, if less than the Offer Amount has been tendered, all Notes and
other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
will contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the
terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
(4) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale Offer
will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have any Notes purchased
pursuant to an Asset Sale Offer may elect to have such Notes purchased
in denominations of $2,000 and integral multiples of $1,000 in excess
thereof only;
46
(6) that Holders electing to have Notes purchased pursuant
to any Asset Sale Offer will be required to surrender such Notes, with
the form entitled "Option of Holder to Elect Purchase" attached to the
Notes completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice prior to the close of business on the
third Business Day preceding the Purchase Date;
(7) that Holders will be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(8) that, if the aggregate principal amount of Notes and
other pari passu Indebtedness surrendered by Holders thereof exceeds the
Offer Amount, the Company will select the Notes and 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 surrendered (with
such adjustments as may be deemed appropriate by the Company so that
only Notes in denominations of $2,000, or integral multiples of $1,000
in excess thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion (to the extent that such unpurchased portion is equal to $2,000
in principal amount or an integral multiple of $1,000 in excess thereof)
of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof properly tendered and not withdrawn pursuant
to the Asset Sale Offer, or if less than the Offer Amount has been properly
tendered and not withdrawn , all Notes properly tendered and not withdrawn, and
will deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.09. The Company, the Depositary or the Paying Agent, as the case
may be, will promptly (but in any case not later than five days after the
Purchase Date) mail or deliver to each Holder of the Notes properly tendered,
and not withdrawn, an amount equal to the purchase price of the Notes tendered
by such Holder and accepted by the Company for purchase, and the Company will
promptly issue a new Note, and the Trustee, upon written request from the
Company, will authenticate and mail or deliver (or cause to be transferred by
book entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered; provided that each new Note will be
in a principal amount of $2,000 or integral multiples of $1,000 in excess
thereof. Any Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company will publicly announce the results of
the Asset Sale Offer on, or as soon as practicable after, the Purchase Date.
Notes repurchased pursuant to an Asset Sale Offer will be retired and cancelled.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.02 through 3.06 hereof.
47
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Liquidated Damages, if any, on, the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Liquidated Damages, if any will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. Such Paying Agent shall
return to the Company, promptly, and in any event, no later than three Business
Days following the date of payment, any money (including accrued interest) in
excess of amounts required to pay the amount of principal, premium, if any, and
interest then due and owing on the Notes. The Company will pay all Liquidated
Damages, if any, in the same manner on the dates and in the amounts set forth in
the Registration Rights Agreement. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the interest rate then in effect on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages, if any, (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 will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be presented or
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company fails to maintain any such required office or agency or fails
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission will in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Company will furnish to the Holders of
Notes or cause the Trustee to furnish to the Holders of Notes, within the time
periods specified in the SEC's rules and regulations (together with extensions
granted by the SEC):
48
(1) all quarterly and annual reports that would be required
to be filed with the SEC on Forms 10-Q and 10-K if the Company were
required to file such reports; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports.
Notwithstanding the foregoing, the Company will not be required to
furnish (or cause the Trustee to furnish) the annual report for the fiscal year
ended January 31, 2006 prior to May 30, 2006. Furthermore, notwithstanding the
foregoing, the requirement to furnish current, quarterly and annual reports to
Holders of Notes will be deemed satisfied prior to the commencement of the
Exchange Offer contemplated by the Registration Rights Agreement or the
effectiveness of a Shelf Registration Statement if the information that would
have been contained in such reports is included in the registration statement
relating to the Exchange Offer and/or the Shelf Registration Statement, or any
amendments thereto, and filed with the SEC within the time periods contemplated
above.
All such reports will be prepared in all material respects in accordance
with all of the rules and regulations applicable to such reports. Each annual
report on Form 10-K will include a report on the Company's consolidated
financial statements by the Company's certified independent accountants. In
addition, following the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, the Company will file a copy of each of the
reports referred to in clauses (1) and (2) above with the SEC for public
availability within the time periods specified in the rules and regulations
applicable to such reports (unless the SEC will not accept such a filing) and
will post the reports on its website within those time periods.
If, at any time after consummation of the Exchange Offer contemplated by
the Registration Rights Agreement, the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding
paragraphs of this Section 4.03(a) with the SEC within the time periods
specified above unless the SEC will not accept such a filing. The Company will
not take any action for the purpose of causing the SEC not to accept any such
filings. If, notwithstanding the foregoing, the SEC will not accept the
Company's filings for any reason, the Company will post the reports referred to
in the preceding paragraphs of this Section 4.03(a)) on its website within the
time periods that would apply if the Company were required to file those reports
with the SEC.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the paragraphs contained in subsection (a) of this Section 4.03 will
include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in "Management's Discussion and
Analysis of Financial Condition and Results of Operations," of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company.
(c) In the event that (1) the rules and regulations of the SEC
permit the Company and any direct or indirect parent entity of the Company to
report at such entity's level on a consolidated basis, (2) such direct or
indirect parent entity is not engaged in any business other than the Permitted
Business of the Company and (3) such direct or indirect parent entity's
consolidated capitalization (including cash and cash equivalents) does not
differ materially from that of the Company's and its Subsidiaries' on a
consolidated basis, the information and reports required by this covenant may be
those of such parent entity on a consolidated basis; provided that such
information and reports distinguish in all material respects between the Company
and its Subsidiaries and such direct or indirect parent entity and its other
subsidiaries, if any.
49
(d) For so long as any Notes remain outstanding, if at any time the
Company is not required to file with the SEC the reports required by paragraphs
(a) and (b) of this Section 4.03, the Company will furnish to the Holders of
Notes and to securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(e) Delivery of any such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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 a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default has occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(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 above shall be accompanied by a
written statement of the Company's independent registered public accountants
(who shall be a firm of established national reputation) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that the Company has
violated any provisions of Article 4 or Article 5 hereof or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) So long as any of the Notes are outstanding, the Company will
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are 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.
50
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that they will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that they may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
they will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend 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 or
distributions payable in Equity Interests (other than Disqualified
Stock) of the Company and other than dividends or distributions payable
to the Company or a Restricted Subsidiary of the Company);
(2) 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 direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or to any Note Guarantee (excluding any
intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries), except (i) a payment of interest or principal
at the Stated Maturity thereof or (ii) the purchase, repurchase or other
acquisition of any such Indebtedness in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case, due within one year of the date of such purchase, repurchase
or other acquisition; or
(4) make any Restricted Investment (all such payments and
other actions set forth in these clauses (1) through (4) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such
Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth
in Section 4.09(a) hereof; and
51
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries since the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7),
(8), (9) and (14) of paragraph (b) of this Section 4.07), is less than
the sum, without duplication of:
(A) 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 date
of this Indenture 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
(B) 100% of the aggregate Qualified Proceeds
received by the Company since the date of this Indenture 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), together with the aggregate cash and Cash
Equivalents received by the Company or any of its Restricted
Subsidiaries at the time of such conversion or exchange; plus
(C) to the extent that any Restricted Investment
that was made after the date of this Indenture is sold for cash
or, is otherwise disposed of or is repurchased, redeemed,
liquidated or repaid for cash, the Fair Market Value of other
property so received with respect to such Restricted Investment
(less the cost of disposition, if any); plus
(D) to the extent that any Unrestricted Subsidiary
of the Company designated as such after the date of this
Indenture is redesignated as a Restricted Subsidiary after the
date of this Indenture, the Fair Market Value of the Company's
Investment in such Subsidiary as of the date of such
redesignation; plus
(E) 50% of any dividends received by the Company or
a Restricted Subsidiary of the Company after the date of this
Indenture from an Unrestricted Subsidiary of the Company, to the
extent that such dividends were not otherwise included in the
Consolidated Net Income of the Company for such period.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or the consummation of any
irrevocable redemption within 60 days after the date of declaration of
the dividend or giving of the redemption notice, as the case may be, if
at the date of declaration or notice, the dividend or redemption payment
would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or
out of the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company) of, Equity Interests of the Company
(other than Disqualified Stock) or from the substantially concurrent
contribution of common equity capital to the Company; provided that the
amount of any such net cash proceeds that are utilized for any such
Restricted Payment will be excluded from clause (3)(B) of Section
4.07(a) hereof;
52
(3) the repurchase, redemption, defeasance or other
acquisition or retirement for value of Indebtedness of the Company or
any Guarantor that is contractually subordinated to the Notes or to any
Note Guarantee with the net cash proceeds from a substantially
concurrent incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend (or, in the case of any
partnership or limited liability company, any similar distribution) by a
Restricted Subsidiary of the Company to the holders of its Equity
Interests on a pro rata basis;
(5) so long as no Default has occurred and is continuing or
would be caused thereby, the repurchase, redemption or other acquisition
or retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company and any distribution, dividend,
loan or advance to Parent or any direct or indirect parent of Parent for
the repurchase, redemption or other acquisition or retirement for value
of any Equity Interests of Parent or any direct or indirect parent of
Parent, in each case, held by any current or former officer, director,
consultant or employee of the Company or any of its Restricted
Subsidiaries or, in each case to the extent applicable, their respective
estates, spouses, former spouses or family members, in each case,
pursuant to any equity subscription agreement, stock option agreement,
shareholders' agreement or similar agreement or benefit plan of any
kind; provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests may not exceed $1.5
million in any calendar year period; provided further that the Company
may carry over and make in subsequent calendar year periods, in addition
to the amounts permitted for such calendar year period, the amount of
such repurchases, redemptions or other acquisitions or retirements for
value, distributions, loans or advances permitted to have been made but
not made in any preceding calendar year period up to a maximum of $3.0
million in any calendar year period; provided further that such amount
in any calendar year may be increased by an amount not to exceed (i) the
net cash proceeds from the sale of Equity Interests (other than
Disqualified Stock) of the Company (or any direct or indirect parent of
the Company to the extent such net cash proceeds are contributed to the
common equity of the Company) to employees, officers, directors or
consultants of the Company and its Restricted Subsidiaries that occurs
after the date of this Indenture (to the extent the cash proceeds from
the sale of such Equity Interests have not otherwise been applied to the
payment of Restricted Payments (including pursuant to clause (3)(B) of
Section 4.07(a))) plus (ii) the cash proceeds of key man life insurance
policies received by the Company and its Restricted Subsidiaries after
the date of this Indenture less any amounts previously applied to the
payment of Restricted Payments pursuant to this clause (5); provided
further that cancellation of Indebtedness owing to the Company from
employees, officers, directors and consultants of the Company or any of
its Restricted Subsidiaries in connection with a repurchase of Equity
Interests of the Company from such Persons will not be deemed to
constitute a Restricted Payment for purposes of this covenant or any
other provisions of this Indenture; and provided further that the net
cash proceeds from such sales of Equity Interests described in subclause
(i) of this clause (5) shall be excluded from clause (3)(B) of Section
4.07(a) to the extent such proceeds have been or are applied to the
payment of Restricted Payments pursuant to this clause (5);
(6) the repurchase of Equity Interests deemed to occur upon
the exercise of stock options or warrants to the extent such Equity
Interests represent a portion of the exercise price of those stock
options or warrants;
(7) so long as no Default has occurred and is continuing or
would be caused thereby, the declaration and payment of regularly
scheduled or accrued dividends to holders of any class or series of
Disqualified Stock of the Company or any Restricted Subsidiary of the
Company
53
issued on or after the date of this Indenture in accordance with the
Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof;
(8) payments in connection with or as a result of the
Acquisition (including, without limitation, to make payments in respect
of earnout obligations) as described in the Offering Memorandum;
(9) Permitted Payments to Parent;
(10) so long as no Default has occurred and is continuing or
would be caused thereby, upon the occurrence of a Change of Control and
within 60 days after completion of a Change of Control Offer pursuant to
Section 4.15 (including the purchase of all Notes tendered), any
purchase or redemption of Indebtedness of the Company that is
contractually subordinated to the Notes or any Guarantee that is
required to be repurchased or redeemed pursuant to the terms thereof as
a result of such Change of Control, at a purchase price not greater than
101% of the outstanding principal amount thereof (plus accrued and
unpaid interest); provided that, prior to such repayment or repurchase,
the Company shall have made the Change of Control Offer with respect to
the Notes as required by Section 4.15 hereof, and the Company shall have
repurchased all Notes validly tendered for payment and not withdrawn in
connection with such Change of Control Offer;
(11) so long as no Default has occurred and is continuing or
would be caused thereby, within 60 days after the completion of an Asset
Sale Offer pursuant to Section 4.10 (including the purchase of all Notes
tendered), any purchase or redemption of Indebtedness of the Company
that is contractually subordinated to the Notes or any Guarantee that is
required to be repurchased or redeemed pursuant to the terms thereof as
a result of such Asset Sale, at a purchase price not greater than 100%
of the outstanding principal amount thereof (plus accrued and unpaid
interest) with any Excess Proceeds that remain after consummation of an
Asset Sale Offer; provided that, prior to such repayment or repurchase,
the Company shall have made the Asset Sale Offer with respect to the
Notes as required by Section 4.10 hereof, and the Company shall have
repurchased all Notes validly tendered for payment and not withdrawn in
connection with such Asset Sale Offer;
(12) the redemption, repurchase or other acquisition for
value of any common Equity Interests of any Foreign Subsidiary of the
Company that are held by a Person that is not an Affiliate of the
Company to the extent required to satisfy applicable laws, rules or
regulations in an aggregate amount since the date of this Indenture not
to exceed $1.0 million; provided that the consideration for such
redemption, repurchase or other acquisition is not in excess of an
amount equal to the lesser of (x) the Fair Market Value of such common
Equity Interests or (y) such amount required by applicable laws, rules
or regulations;
(13) so long as no Default has occurred and is continuing or
would be caused thereby, the declaration or payments of dividends on the
common Capital Stock of the Company following a public equity offering
of such common stock or the common Capital Stock of a direct or indirect
parent of the Company of up to 6% per annum of the net cash proceeds
received by the Company in or as a result of such public equity
offering;
(14) so long as no Default has occurred and is continuing or
would be caused thereby, payments not to exceed $100,000 in the
aggregate since date of this Indenture to enable the Company to make
payments to holders of its Capital Stock in lieu of issuance of
fractional shares of its Capital Stock;
54
(15) so long as no Default has occurred and is continuing or
would be caused thereby, the payment of intercompany Indebtedness that
is expressly subordinated to the Notes or any Guarantee, the incurrence
of which is permitted under clause (7) of Section 4.09(b); and
(16) so long as no Default has occurred and is continuing or
would be caused thereby, other Restricted Payments in an aggregate
amount not to exceed $7.5 million since the date of this Indenture.
The amount of all Restricted Payments (other than cash) will be the Fair
Market Value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair
Market Value of any assets or securities that are required to be valued by this
Section 4.07 will be determined by the Board of Directors of the Company whose
resolution with respect thereto shall be delivered to the Trustee. The Board of
Directors' determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
Fair Market Value exceeds $10.0 million.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries or
pay any liabilities owed to the Company or any of its Restricted
Subsidiaries;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company
or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit
Facilities as in effect on the date of this Indenture and any
amendments, restatements, modifications, renewals, increases,
supplements, refundings, replacements or refinancings of those
agreements; provided that the amendments, restatements, modifications,
renewals, increases, supplements, refundings, replacements or
refinancings are not materially more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those
contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) applicable law, rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock
of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the
extent such Indebtedness or Capital Stock was incurred in connection
with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any
55
Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired; provided
that, in the case of Indebtedness, such Indebtedness was permitted by
the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in contracts and
licenses entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature described
in clause (3) of Section 4.08(a) hereof;
(7) any agreement for the sale or other disposition of all
or substantially all of the Capital Stock or assets of a Restricted
Subsidiary or an agreement entered into for the sale of assets that
restricts distributions by that Restricted Subsidiary pending such sale
or other disposition;
(8) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness
being refinanced;
(9) Liens permitted to be incurred under the provisions of
Section 4.12 hereof that limit the right of the debtor to dispose of the
assets subject to such Liens;
(10) provisions limiting the disposition or distribution of
assets or property in joint venture agreements, limited liability
company operating agreements, partnership agreements, asset sale
agreements, sale-leaseback agreements, options, stock sale agreements,
lease agreements, licenses and other similar agreements entered into
with the approval of the Company's Board of Directors, which limitation
is applicable only to the assets that are the subject of such
agreements;
(11) restrictions on cash or other deposits or net worth
imposed by customers, suppliers or landlords under contracts entered
into in the ordinary course of business;
(12) provisions in agreements or instruments that prohibit
the payment of dividends or the making of other distributions with
respect to any Capital Stock of a Person on other than a pro rata basis;
(13) any encumbrance or restriction contained in any
Indebtedness incurred by a Foreign Subsidiary pursuant to clause (15) of
Section 4.09(b) that applies only to such Foreign Subsidiary;
(14) any other Indebtedness, Disqualified Stock or preferred
stock of any Restricted Subsidiary permitted to be incurred or issued,
as applicable, subsequent to the date of this Indenture pursuant to the
provisions of Section 4.09 and any encumbrance or restriction contained
in such Indebtedness does not prohibit (except upon a default or event
of default thereunder) the payment of dividends in an amount sufficient
to make scheduled payments of cash interest on the Notes when due;
(15) in the case of clause (3) of Section 4.08(a):
56
(a) 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) 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 of its Restricted Subsidiaries not
otherwise prohibited by this Indenture, or
(c) 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 of its Restricted Subsidiaries in any
manner material to the Company or any of its Restricted Subsidiaries;
and
(16) any encumbrances or restrictions imposed by any
amendments, modifications restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (15)
above; provided that the encumbrances or restrictions in such
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are not materially
more restrictive, in the good faith judgment of the Board of Directors
of the Company, taken as a whole, than the encumbrances or restrictions
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock and the Guarantors may incur Indebtedness
(including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock or
preferred stock is issued, as the case may be, would have been at least (a) 2.0
to 1.0, if the date of such incurrence or issuance is on or prior to February
15, 2008, or (b) 2.25 to 1.0, if the date of such incurrence or issuance is
after February 15, 2008, in each case, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock or the
preferred stock had been issued, as the case may be, at the beginning of such
four-quarter period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by the Company (and the Guarantee thereof
by any Guarantor) of Indebtedness and letters of credit under Credit
Facilities which excludes the Notes issued on the date of and pursuant
to this Indenture in an aggregate principal amount at any one time
outstanding under this clause (1) (with letters of credit being deemed
to have a principal amount equal to the maximum potential liability of
the Company and its Restricted Subsidiaries thereunder) not to exceed
the greater of (x) $50.0 million or (y) the amount of the Borrowing Base
as of the date of such incurrence; plus the amount of any reasonable
fees, underwriting discounts, premiums, prepayment penalties and other
costs and expenses incurred in connection
57
with extending, refinancing, renewing, replacing or refunding any Credit
Facility under which Indebtedness is incurred pursuant to this clause
(1);
(2) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees to
be issued on the date of this Indenture and the Exchange Notes and the
related Note Guarantees to be issued pursuant to the Registration Rights
Agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Attributable Debt in connection with a sale and
leaseback of the facility located in Janesville, Wisconsin and owned by
the Company on the date of this Indenture, in an aggregate principal
amount for all Attributable Debt, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or
discharge any Attributable Debt incurred pursuant to this clause (4),
not to exceed $5.0 million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of (i) Attributable Debt in connection with a sale and
leaseback transaction or (ii) 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 design, development, construction,
installation or improvement of property, plant or equipment used in the
business of the Company or any of its Restricted Subsidiaries (whether
through the direct acquisition or otherwise of such Equity Interests of
any Person owning such assets), in an aggregate principal amount for all
Attributable Debt and all Indebtedness, including all Permitted
Refinancing Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Attributable Debt and other Indebtedness
incurred pursuant to this clause (5), not to exceed $5.0 million at any
time outstanding;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to renew, refund, refinance, replace,
defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under
Section 4.09(a) hereof or clauses (2), (3), (4), (5), (6), (12), (15) or
(18) of this Section 4.09(b);
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor
on such Indebtedness and the payee is not the Company or a
Guarantor, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations then due
with respect to the Notes, in the case of the Company, or the
Note Guarantee, in the case of a Guarantor; and
(B) (1) 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 and (2) any sale or other transfer of any such
Indebtedness (other than solely as a result of the creation of a
Permitted Lien upon such intercompany Indebtedness) to a Person
that is not either the Company or a Restricted Subsidiary,
58
will be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case
may be, that was not permitted by this clause (7);
(8) the issuance by any of the Company's Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries of
shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity
Interests that results in any such preferred stock being held by
a Person other than the Company or a Restricted Subsidiary; and
(B) any sale or other transfer of any such preferred
stock (other than solely as a result of the creation of a
Permitted Lien upon such Equity Interests) to a Person that is
not either the Company or a Restricted Subsidiary,
will be deemed, in each case, to constitute an issuance of such
preferred stock by such Restricted Subsidiary that was not permitted by
this clause (8);
(9) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of business;
(10) the guarantee by the Company or any of the Guarantors 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; provided that if the Indebtedness being guaranteed is subordinated
to or pari passu with the Notes, then the Guarantee shall be
subordinated or pari passu, as applicable, to the same extent as the
Indebtedness guaranteed;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of obligations in respect of workers' compensation claims,
self-insurance obligations, bankers' acceptances, performance,
completion and surety bonds, completion guarantees and similar
obligations in the ordinary course of business;
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days;
(13) the incurrence by the Company or a Restricted Subsidiary
of Indebtedness arising from agreements of the Company or such
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed
in connection with the sale or other disposition of any business, assets
or Capital Stock of the Company or any Restricted Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Capital Stock; provided that (A) the
maximum aggregate liability in respect of all such Indebtedness shall at
no time exceed the gross proceeds, whether or not cash, actually
received by the Company and its Restricted Subsidiaries in connection
with such disposition and (B) such Indebtedness is not reflected in the
balance sheet of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not
otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this clause (B));
59
(14) the incurrence by the Company or any of its Restricted
Subsidiaries of contingent liabilities arising out of endorsements of
checks and other negotiable instruments for deposit or collection in the
ordinary course of business;
(15) the incurrence by a Foreign Subsidiary of additional
Indebtedness in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this clause
(15), not to exceed $5.0 million at any time outstanding;
(16) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business,
including, without limitation, letters of credit in respect of workers'
compensation claims or self-insurance, or other Indebtedness with
respect to reimbursement type obligations regarding workers'
compensation claims or self-insurance; provided, however, that, upon the
drawing of such instruments or the incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or
incurrence;
(17) Indebtedness of the Company or any of its Restricted
Subsidiaries to the extent the proceeds thereof are substantially
concurrently used to redeem the Notes in full or deposited to defease or
discharge the Notes, in each case, in accordance with this Indenture;
and
(18) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including
all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (18), not to exceed $10.0 million.
The Company will not incur, and will not permit any Guarantor to incur,
any Indebtedness (including Permitted Debt) that is contractually subordinated
in right of payment to any other Indebtedness of the Company or such Guarantor
unless such Indebtedness is also contractually subordinated in right of payment
to the Notes and the applicable Note Guarantee on substantially identical terms;
provided, however, that no Indebtedness shall be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company or any
such Guarantor, as applicable, solely by reason of any Liens or guarantees
arising or created in respect thereof or, by virtue of being unsecured or by
reason of being secured on a first or junior Lien basis.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (18) above
or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company
(in its sole discretion) will be permitted to divide and classify such item of
Indebtedness on the date of its incurrence, or later reclassify all or a portion
of such item of Indebtedness, in any manner that complies with this Section
4.09. Indebtedness under Credit Facilities outstanding on the date on which
Notes are first issued and authenticated under this Indenture will initially be
deemed to have been incurred on such date in reliance on the exception provided
by clause (1) of the definition of Permitted Debt. The accrual of interest, the
accretion or amortization of original issue discount, the payment of interest on
any Indebtedness in the form of additional Indebtedness with the same terms, the
reclassification of preferred stock as Indebtedness due to a change in
accounting principles, and the payment of dividends on Disqualified Stock or
preferred stock in the form of additional shares of the same class of
Disqualified Stock or preferred stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock or preferred stock for
purposes of this Section 4.09; provided, in each such case, that the amount of
any such accrual, accretion or payment is included in
60
Fixed Charges of the Company as accrued. Notwithstanding any other provision of
this Section 4.09, the maximum amount of Indebtedness that the Company or any
Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be
deemed to be exceeded solely as a result of fluctuations in exchange rates or
currency values.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of
any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of
any other Indebtedness;
(3) in respect of Indebtedness of another Person secured by
a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date
of determination; and
(B) the amount of the Indebtedness subject to such
Lien of the other Person;
(4) with respect to Indebtedness of others supported by a
guarantee of the Company or a Restricted Subsidiary, the lesser of the
amount of the primary indebtedness and any stated limit on recourse
under the guarantee; and
(5) the amount of the Indebtedness in respect of any Hedging
Obligations at any time shall be equal to the amount payable as a result
of the termination of such Hedging Obligations at such time.
Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case
may be) receives consideration at the time of the Asset Sale at least
equal to the Fair Market Value of the assets or Equity Interests issued
or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of cash
or Cash Equivalents. For purposes of this provision, each of the
following shall be deemed to be cash:
(A) any liabilities, as shown on the Company's most
recent consolidated balance sheet, of the Company or any
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or
any Note Guarantee) that are assumed by the transferee of any
such assets pursuant to a customary assumption agreement that
releases the Company or such Restricted Subsidiary from further
liability;
(B) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from
such transferee that are, within 180 days of the Asset Sale,
converted by the Company or such Restricted Subsidiary into
cash, to the extent of the cash received in that conversion;
61
(C) any stock or assets of the kind referred to in
clauses (3) or (5) of Section 4.10(b);
(D) any Designated Noncash Consideration received by
the Company or any Restricted Subsidiary thereof in such Asset
Sale having a Fair Market Value, taken together with all other
Designated Noncash Consideration received pursuant to this
clause (D) that is at that time outstanding, not to exceed $5.0
million at the time of receipt of such Designated Noncash
Consideration, with the Fair Market Value of each item of
Designated Noncash Consideration being measured at the time
received without giving effect to subsequent changes in value;
and
(E) cash held in escrow as security for any purchase
price settlement, for damages in respect of a breach of
representations and warranties or certain covenants or for
payment of other contingent obligations in connection with the
Asset Sale.
(b) Within 365 days after the receipt of any Net Proceeds from an
Asset Sale (provided that if during such 365-day period the Company (or the
applicable Restricted Subsidiary) enters into a definitive binding agreement
committing it to apply such Net Proceeds in accordance with the requirements of
clauses (3) and (5) of this Section 4.10(b) after such 365th day, such 365-day
period will be extended with respect to the amount of Net Proceeds so committed
for a period not to exceed 180 days until such Net Proceeds are required to be
applied in accordance with such agreement (or, if earlier, until termination of
such agreement)), the Company (or the applicable Restricted Subsidiary, as the
case may be) may apply such Net Proceeds at its option:
(1) to permanently repay Indebtedness and other Obligations
under a Credit Facility and, if the Indebtedness repaid is revolving
credit Indebtedness, to correspondingly reduce commitments with respect
thereto;
(2) if such assets were sold by a Restricted Subsidiary that
is not a Guarantor, to repay any Indebtedness of such Restricted
Subsidiary or any other Restricted Subsidiary that is not a Guarantor;
(3) to acquire all or substantially all of the assets of, or
any Capital Stock of any Person engaged in, another Permitted Business,
if, after giving effect to any such acquisition of Capital Stock, the
Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make a capital expenditure that is used or useful in
a Permitted Business; or
(5) to acquire other assets that are not classified as
current assets under GAAP and that are used or useful in a Permitted
Business.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in Section 4.10(b) will constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $10.0 million, within ten days
thereof, the Company will make an Asset Sale Offer in accordance with the
procedures set forth in Section 3.09 to all Holders of Notes and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets in accordance with Section 3.09
hereof to purchase the maximum principal amount of Notes and such other pari
passu Indebtedness that may be
62
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of the principal amount 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 those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of the Notes and
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and the Company or
such other applicable party shall select such other pari passu Indebtedness to
be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
Section 3.09 hereof or this Section 4.10, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.09 hereof or this Section 4.10 by
virtue of such compliance.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (each an "Affiliate Transaction"), unless:
(1) the Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a resolution of the
Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies
with clause (1) of this Section 4.11(a) and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors of the Company; and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, an opinion as to the
fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national
standing.
(b) The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of Section
4.11(a) hereof:
(1) any consulting or employment agreement or arrangement,
incentive compensation plan, stock option or stock ownership plan,
employee benefit plan, severance arrangements, officer or director
indemnification agreement or any similar arrangement entered
63
into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and payment pursuant thereto;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company solely
because the Company owns, directly or through a Restricted Subsidiary,
an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors fees to directors of the
Company or any direct or indirect parent or any Restricted Subsidiary of
the Company and the provision of customary indemnification to directors,
officers and employees of the Company or direct or indirect parent or
any Restricted Subsidiary of the Company;
(5) any issuance of Equity Interests (other than
Disqualified Stock) of the Company to Affiliates of the Company or any
contribution to the capital of the Company (other than as Disqualified
Stock);
(6) Restricted Payments that do not violate Section 4.07
hereof;
(7) payment of fees and reimbursement of expenses not in
excess of the amounts specified in, or determined pursuant to, the
Management Agreement as in effect on the date of this Indenture;
(8) Permitted Payments to Parent;
(9) any agreement or arrangements as in effect on the date
of this Indenture and described in the Offering Memorandum under the
heading "Certain Relationships and Related Party Transactions," and any
renewals, extensions or replacements of any such agreement or
arrangements (so long as such renewals, extensions or replacements are
not, taken as a whole, materially less favorable to the Holders of the
Notes as determined by the Board of Directors of the Company in its
reasonable good faith judgment) and the transactions contemplated
thereby;
(10) loans or advances to employees in the ordinary course of
business not to exceed $1.0 million in the aggregate at any one time
outstanding and expense reimbursements to employees in the ordinary
course of business;
(11) sales or purchases of goods or services, in each case in
the ordinary course of business, on terms no less favorable to the
Company or the applicable Restricted Subsidiary than those that are
actually being obtained substantially contemporaneously in comparable
transactions with Persons that are not Affiliates of the Company, and
otherwise in compliance with the terms of this Indenture; and
(12) repurchases of the Notes if repurchased on the same
terms as offered to Persons that are not Affiliates of the Company.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist
any Lien of any kind (other than Permitted Liens) upon any asset ("Primary
Lien"), now owned or hereafter acquired, unless all payments due under this
64
Indenture and the Notes are secured on an equal and ratable basis with the
obligations so secured (or in the case of subordinated Indebtedness, prior or
senior thereto, with the same relative priority as the Notes shall have with
respect to such subordinated Indebtedness) until such time as such obligations
are no longer secured by a Lien.
Any Lien created for the benefit of the Holders of the Notes pursuant to
the immediately preceding paragraph shall automatically and unconditionally be
released and discharged upon the release and discharge of the Primary Lien,
without any further action on the part of any Person.
Section 4.13 Business Activities.
The Company will not, and will 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 4.14 Corporate Existence.
Subject to Article 5 and Section 10.05 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect:
(1) its corporate existence, and the corporate, limited
liability company, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time)
of the Company or any such Restricted Subsidiary; and
(2) the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other
existence of any of its Restricted Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders of the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will
make an offer (a "Change of Control Offer") to each Holder to repurchase all or
any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof)
of that Holder's Notes at a purchase price in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest
and Liquidated Damages, if any, on the Notes repurchased to the date of
purchase, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date (the "Change of
Control Payment"). Within 30 days following any Change of Control, the Company
will mail a notice to the Trustee and to each Holder describing the transaction
or transactions that constitute the Change of Control and stating:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.15 and that all Notes tendered will be accepted for
payment;
(2) the purchase price and the purchase date, which shall be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
65
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase"
attached to the Notes completed, or transfer by book-entry transfer, to
the Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day preceding the Change of
Control Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have the Notes
purchased; and
(7) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (to the extent that such
unpurchased portion is equal to $2,000 in principal amount or integral
multiple of $1,000 in excess thereof).
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of Section 4.15 hereof, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Section 4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes
properly tendered and not withdrawn pursuant to the Change of Control
Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee the
Notes properly accepted together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
The Paying Agent will promptly mail (but in any case not later than five
days after the Change of Control Payment Date) to each Holder of Notes properly
tendered and not withdrawn, the Change of Control Payment for such Notes, and
the Trustee will promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided, that each new
Note will be in denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date. A Change of Control Offer may be made in advance of a Change of Control,
conditional upon such Change
66
of Control, if a definitive agreement is in place for the Change of Control at
the time of making the Change of Control Offer. Notes repurchased pursuant to a
Change of Control Offer will be retired and cancelled.
(c) Notwithstanding anything to the contrary in this Section 4.15,
the Company will not be required to make a Change of Control Offer upon a Change
of Control if (1) a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in this
Section 4.15 hereof and purchases all Notes properly tendered and not withdrawn
under the Change of Control Offer, (2) notice of redemption has been given
pursuant to Section 3.07 hereof, unless and until there is a default in payment
of the applicable redemption price, or (3) in connection with or in
contemplation of any Change of Control, they or a third party have made an offer
to purchase (an "Alternate Offer") any and all Notes validly tendered at a cash
price equal to or higher than the Change of Control Payment and has purchased
all Notes properly tendered and not withdrawn in accordance with the terms of
such Alternate Offer.
Section 4.16 Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company may enter into a sale and leaseback transaction if:
(1) the Company could have (a) incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and
leaseback transaction under the Fixed Charge Coverage Ratio test in
Section 4.09(a) hereof or pursuant to clause (4) or clause (5) of
Section 4.09(b) and (b) incurred a Lien to secure such Indebtedness
pursuant to the provisions of Section 4.12 hereof;
(2) the gross cash proceeds of that sale and leaseback
transaction are at least equal to the Fair Market Value, as determined
in good faith by the Board of Directors of the Company and set forth in
an Officers' Certificate delivered to the Trustee, of the property that
is the subject of that sale and leaseback transaction; and
(3) the transfer of assets in that sale and leaseback
transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, Section 4.10 hereof.
Section 4.17 Payments for Consent.
The Company will not, and will 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 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 Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or creates
another Domestic Subsidiary after the date of this Indenture, then the Company
will cause that newly acquired or created Domestic Subsidiary to become a
Guarantor and execute a Note Guarantee in the form attached as Exhibit E hereto,
a supplemental indenture in substantially the form attached as Exhibit F hereto
and deliver an Opinion of Counsel to the Trustee within 20 Business Days of the
date on which it was acquired or
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created to the effect that such supplemental indenture has been duly authorized,
executed and delivered by that Domestic Subsidiary and constitutes a valid and
binding agreement of that Domestic Subsidiary, enforceable in accordance with
its terms (subject to customary exceptions).
Section 4.19 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted (after giving effect to any sale of Equity Interests of such
Subsidiary in connection with such designation) will be deemed to be an
Investment made as of the time of the designation and will either reduce the
amount available for Restricted Payments under Section 4.07 hereof or under one
or more clauses of the definition of Permitted Investments, as determined by the
Company. That designation will only be permitted if the Investment would be
permitted at that time and if the Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary. The Board of Directors of the Company
may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if
that redesignation would not cause a Default.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of a resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would no longer meet the preceding
requirements for designation as an Unrestricted Subsidiary, it will thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09 hereof, the Company
will be in default of such covenant. The Board of Directors of the Company may
at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary
of the Company; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary, and such designation
will only be permitted if (1) such Indebtedness is permitted under Section 4.09
hereof, calculated on a pro forma basis as if such designation had occurred at
the beginning of the four-quarter reference period; and (2) no Default or Event
of Default would be in existence following such designation.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly: (i) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey (not including any
conveyance, if any, resulting solely from the creation of any Lien) or otherwise
dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
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(1) 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
has been made is an entity organized or existing under the laws
of the United States, any state of the United States or the
District of Columbia; provided, that in the case such Person is
not a corporation, a co-obligor of the Notes is a corporation;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement pursuant to a
supplemental indenture and such other agreements reasonably satisfactory
to the Trustee;
(3) immediately after such transaction, no Default or Event
of Default exists; and
(4) the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, conveyance or other disposition has
been made would, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period:
(A) be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof; or
(B) would have a Fixed Charge Coverage Ratio that is
equal to or greater than the Fixed Charge Coverage Ratio of the
Company immediately prior to such transaction.
In addition, the Company will not, directly or indirectly, lease all or
substantially all of its or its Restricted Subsidiaries' properties or assets
taken as a whole, in one or more related transactions, to any other Person. This
Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the
purpose of reincorporating the Company in another jurisdiction; or
(2) any consolidation or merger, or any sale, assignment,
transfer, conveyance, lease or other disposition of assets between or
among the Company and its Restricted Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor Person and not to the Company), and may
exercise every right and power of the Company
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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, Liquidated
Damages, if any, and interest on the Notes except in the case of a sale of all
of the Company's assets in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of interest
on, or Liquidated Damages, if any, with respect to, the Notes;
(2) default in the payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on,
the Notes;
(3) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.10, 4.15 or
5.01 hereof;
(4) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes
then outstanding voting as a single class to comply with any of the
other agreements in this Indenture;
(5) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists, or is created after
the date of this Indenture, if that default:
(A) is caused by a failure to 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
$15.0 million or more;
(6) failure by the Company or any of its Restricted
Subsidiaries to pay final and non-appealable judgments entered by a
court or courts of competent jurisdiction aggregating in excess of $15.0
million (net of any amounts covered by insurance or pursuant to which
the Company is indemnified to the extent that the third party under such
agreement honors its obligations thereunder), which judgments are not
paid, discharged or stayed for a period of 60 days and, in the event
such judgment is covered by insurance, an enforcement proceeding has
been commenced by any creditor upon such judgment or decree that is not
promptly stayed;
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(7) except as permitted by this Indenture, any Note
Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect, or any
Guarantor, or any Person acting on behalf of any Guarantor, denies or
disaffirms its obligations under its Note Guarantee;
(8) the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of
its creditors, or
(E) generally is not paying its debts as they become
due; and
(9) 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 of the Company that, taken
together, would constitute a Significant Subsidiary in an
involuntary case;
(B) appoints a custodian of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clauses (8) or (9) of
Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of
the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately
without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately.
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Upon any such declaration, the Notes shall become due and payable
immediately.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of all of the
Holders, rescind an acceleration and its consequences, if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium or Liquidated Damages, if
any, that has become due solely because of the acceleration) have been cured or
waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Liquidated
Damages, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium or Liquidated Damages, if any, or interest
on, the Notes (including in connection with an offer to purchase); provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
Holders of Notes may not enforce this Indenture or the Notes except as
provided in this Indenture and the TIA. A Holder may pursue a remedy with
respect to this Indenture or the Notes only if:
(1) such Holder gives to the Trustee written notice that an
Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
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(3) such Holder or Holders offer and, if requested, provide
to the Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) during such 60-day period, Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and 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(1) or (2) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and 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 Notes allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation,
expenses 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 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 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 and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture, but the
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Trustee need not verify the contents thereof. However, the Trustee will
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture, but need not confirm or
investigate the accuracy of nonmaterial calculations or other facts
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:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01 and 7.02;
(2) the Trustee will not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to
expend or risk its own funds or incur any liability. The Trustee will be under
no obligation to exercise any of its rights and powers under this Indenture at
the request or direction of any Holders, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee will not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and will
not be responsible for the misconduct or negligence of any attorney or agent
(other than an agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
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(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee reasonable
indemnity or security against the losses, liabilities and expenses that might be
incurred by it in compliance with such request or direction.
(g) The rights, privileges protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(h) The Trustee shall not be charged with knowledge of any Default
or Event of Default unless either (i) a Responsible Officer shall have actual
knowledge thereof, or (ii) the Trustee shall have received notice thereof from
the Company or any Holder of Notes.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (if this Indenture has been qualified under the TIA) or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee will mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium or
Liquidated Damages, if any, or interest on, any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of Notes.
Section 7.06 Reports by Trustee to Holders of Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of 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
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transmitted). The Trustee also will comply with TIA SS. 313(b)(2). The Trustee
will also transmit by mail all reports as required by TIA SS. 313(c).
(b) A copy of each report at the time of its mailing to the Holders
of Notes will be mailed by the Trustee to the Company and filed by the Trustee
with the SEC and each stock exchange on which the Notes are listed in accordance
with TIA SS. 313(d). The Company will promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company and the Guarantors, jointly and severally, will pay
to the Trustee from time to time reasonable compensation as the Company and the
Trustee shall from time to time agree to in writing for its acceptance of this
Indenture and services hereunder. The Trustee's compensation will not be limited
by any law on compensation of a trustee of an express trust. The Company will
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses will include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
(b) The Company and the Guarantors, jointly and severally, will
indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company and the Guarantors
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company, the Guarantors, any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence or bad faith or willful misconduct. The
Trustee will notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company will not relieve the
Company or any of the Guarantors of their obligations hereunder. The Company or
such Guarantor will defend the claim and the Trustee will cooperate in the
defense. The Trustee may have separate counsel and the Company will pay the
reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's and the Guarantors' payment obligations
in this Section 7.07, the Trustee will have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that held in trust to
pay principal and interest on particular Notes. Such Lien will survive the
satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA SS. 313(b)(2)
to the extent applicable.
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Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of a
majority in aggregate 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:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been
a Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation or
national association, the successor corporation or national association without
any further act will be the successor Trustee.
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Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements
of TIA SS. 310(a)(1), (2) and (5). The Trustee is subject to TIA SS. 310(b).
Section 7.11 Preferential Collection of Claims Against 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.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and all
obligations of the Guarantors upon compliance with the conditions set forth
below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including the Note Guarantees), which will thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which will survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Liquidated Damages, if any, on, such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes
under Article 2 concerning issuing temporary notes, registration of
notes, mutilated, destroyed, lost or stolen notes, Section 4.02 and
Section 8.05 hereof;
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(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith; and
(4) 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 will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and
4.19 hereof and clause (4) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees will be unaffected thereby. In
addition, upon the 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, Sections 6.01(3) through 6.01(6) hereof will
not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(1) the Company must 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 will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm, or firm of independent
public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on, the outstanding Notes on the stated
date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being
defeased to such stated date for payment or to a particular redemption
date;
(2) in the case of an election under Section 8.02 hereof,
the Company must deliver to the Trustee an Opinion of Counsel confirming
that:
(A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling; or
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(B) since the date of this Indenture, there has been
a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof,
the Company must deliver to the Trustee an Opinion of Counsel confirming
that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and 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 will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
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Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
The Trustee shall promptly, and in any event, no later than three
Business Days, pay to the Company after request therefor, any excess money or
non callable Government Securities held with respect to the Notes at such time
in excess of amounts required to pay any of the Company's Obligations then owing
with respect to the Notes.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium or
Liquidated Damages, if any, or interest on, any Note and remaining unclaimed for
two years after such principal, premium or Liquidated Damages, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, will thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which will not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantors' obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium or
Liquidated Damages, if any, or interest on, any Note following the reinstatement
of its obligations, the Company will be subrogated to the rights of the Holders
of such Notes to receive such payment from the money 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, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
or the Note Guarantees without the consent of any Holder of Note:
(1) to cure any ambiguity, defect or inconsistency;
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(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of Notes and Note Guarantees by a
successor to the Company or such Guarantor pursuant to Article 5 or
Article 10 hereof;
(4) 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 hereunder of any Holder;
(5) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Note
Guarantees or the Notes to any provision of the "Description of Notes"
section of the Offering Memorandum to the extent that such provision in
that "Description of Notes" was intended to be a verbatim recitation of
a provision of this Indenture, the Note Guarantees or the Notes;
(7) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof;
(8) to allow any Guarantor to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes;
(9) to comply with the rules of any applicable securities
depositary;
(10) to provide for a successor trustee in accordance with
the terms of this Indenture or to otherwise comply with any requirement
of this Indenture; or
(11) to add a co-issuer or co-obligor of the Notes.
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
9.06 hereof, the Trustee will join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that adversely
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided in Section 9.01 and below in this Section 9.02, the
Company, the Guarantors and the Trustee may amend or supplement this Indenture
(including, without limitation, Section 3.09, 4.10 and 4.15 hereof) and the
Notes and the Note Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes (including,
without limitation, Additional Notes, if any) voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or Exchange Offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium
or Liquidated Damages, if any, or interest on, the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes or the Note Guarantees may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including, without
83
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
Exchange Offer for, or purchase of, the Notes).
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 9.06 hereof, the Trustee will
join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement, waiver or consent, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company will mail to the Holders 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, will not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of 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 or the Note Guarantees. However,
without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter or waive any of the provisions with respect to the
date of or redemption price payable in connection with the redemption of
the Notes (except as provided above with respect to Sections 3.09, 4.10
and 4.15 hereof);
(3) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of
principal of, or premium or Liquidated Damages, if any, or interest on,
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes and a waiver of the payment default that resulted from
such acceleration);
(5) make any Note payable in money other than that stated in
the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, or interest or premium or
Liquidated Damages, if any, on, the Notes;
(7) waive a redemption payment with respect to any Note
(other than a payment required by Sections 3.09, 4.10 or 4.15 hereof);
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(8) release any Guarantor from any of its obligations under
its Note Guarantee or this Indenture, except in accordance with the
terms of this Indenture; or
(9) make any change in the preceding amendment and waiver
provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be set
forth in an amended or supplemental indenture that complies with the TIA as then
in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
of the Company approves it. In executing any amended or supplemental indenture,
the Trustee will be entitled to receive and (subject to Section 7.01 hereof)
will be fully protected in relying upon, in addition to the documents required
by Section 12.04 hereof, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
NOTE GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each Guarantor 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:
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(1) the principal of, premium and Liquidated Damages, if
any, and interest on, the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise (including
any interest, if lawful, on the overdue principal of, and interest or
Liquidated Damages, if any, on the Notes) and all other Obligations of
the Company to the Holders or the Trustee hereunder or under the Notes
will be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that same will be
promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will 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 are
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 any provisions
hereof or thereof, 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. 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 will 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, will be reinstated in full
force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors will 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 10.02 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
86
agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of 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 10, result
in the obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section 10.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01 hereof, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit E hereto will be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 10.01 hereof will remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted Subsidiaries
creates or acquires any Domestic Subsidiary after the date of this Indenture, if
required by Section 4.18 hereof, the Company will cause such Domestic Subsidiary
to comply with the provisions of Section 4.18 hereof and this Article 10, to the
extent applicable.
Section 10.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 10.05 hereof, no Guarantor may
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:
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) 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 assumes all the obligations of that Guarantor
under this Indenture, its Note Guarantee and the Registration Rights
Agreement on the terms set forth herein or therein, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to
the Trustee; or
(b) the Net Proceeds of such sale or other disposition
are applied in accordance with the applicable provisions of this
Indenture, including without limitation, Section 4.10 hereof.
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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 covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person will succeed to and be substituted for the 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 will in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses 2(a) and (b) above, nothing contained in this Indenture or in any of the
Notes will prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or will 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.
Section 10.05 Releases.
(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the Capital
Stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) the Company or a Restricted Subsidiary
of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the Capital
Stock of such Guarantor) or the corporation acquiring the property (in the event
of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Note
Guarantee; provided that such sale or other disposition complies with the
applicable provisions of this Indenture, including without limitation Section
4.10 hereof. 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 this
Indenture, including without limitation Section 4.10 hereof, the Trustee will
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.
(b) Upon designation of any Guarantor as an Unrestricted Subsidiary
in accordance with the terms of this Indenture, such Guarantor will be released
and relieved of any obligations under its Note Guarantee.
(c) Upon Legal Defeasance of this Indenture in accordance with
Article 8 hereof or satisfaction and discharge of this Indenture in accordance
with Article 11 hereof, each Guarantor will be released and relieved of any
obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee
as provided in this Section 10.05 will remain liable for the full amount of
principal of and interest and premium and Liquidated Damages, if any, on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 10.
88
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect
as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has 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
mailing 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 and
Liquidated Damages, if any, and accrued interest to the date of maturity
or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit);
(3) the Company or any Guarantor has paid or caused to be
paid all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or on the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will
survive. In addition, nothing in this Section 11.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited
with the Trustee pursuant to Section 11.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium and
Liquidated Damages, if any) and interest for whose payment such
89
money has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 hereof; provided that if the Company has made any
payment of principal of, premium or Liquidated Damages, if any, or interest on,
any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties will control.
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 by first
class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
RathGibson Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇ No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
90
All notices and communications (other than those sent to Holders) will
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA SS. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it will 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, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 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; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must 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.
Notwithstanding the foregoing, no such Opinion of Counsel shall be given
with respect to the authentication and delivery of the Initial Notes.
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)) must comply with the provisions of TIA SS. 314(e)
and must include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
91
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 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 past, present or future director, officer, employee, partner,
manager, agent, member, incorporator (or Person forming any limited liability
company) or stockholder of the Company or any Guarantor, as such, will have any
liability for any obligations of the Company or the Guarantors under the Notes,
this Indenture, the Note Guarantees, the Registration Rights Agreement 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 and a Note Guarantee waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Note Guarantees. The waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
Section 12.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 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.
Section 12.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 10.05 hereof.
92
Section 12.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 12.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy will be an original, but all of them together represent the same agreement.
Section 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 will in no
way modify or restrict any of the terms or provisions hereof.
Section 12.14 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software or hardware) services; it being understood that the Trustee shall us
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
[Signatures on following page]
93
SIGNATURES
Dated as of February 7, 2006
RathGibson, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & CEO
The Bank of New York, as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A1
[Face of Note]
--------------------------------------------------------------------------------
CUSIP/CINS __________
11.25% Senior Notes due 2014
No. ___ $____________
RATHGIBSON, INC.
promises to pay to_______or registered assigns,
the principal sum of __________________________________________________ DOLLARS
on February 15, 2014.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated: _______________, 200_
RATHGIBSON, INC.
By: ____________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By: __________________________________
Authorized Signatory
--------------------------------------------------------------------------------
A1-1
[Back of Note]
11.25% Senior Notes due 2014
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. RathGibson, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
at 11.25% per annum from ________________, 20__ 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 will pay
interest and Liquidated Damages, if any, semi-annually in arrears on
February 15 and August 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each, an "Interest
Payment Date"). Interest, and Liquidated Damages, if any, on the Notes
will 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, or Liquidated
Damages, if any, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment
Date, interest and Liquidated Damages, if any, shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be _____________, 20__. The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal on demand at a rate that is equal to 1% per
annum in excess of the interest rate then in effect on the Notes to the
extent lawful; it will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest and Liquidated Damages, if any, will be computed on the
basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons
who are registered Holders of Notes at the close of business on the
February 1 or August 1 next preceding the Interest Payment Date, even if
such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be payable as to
principal, premium and 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; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium
and Liquidated Damages, if any, on, all Global Notes and all other Notes
to the extent that the Holders thereof have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will 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.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York,
the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any
A1-2
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, 2006 (the "Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and
the TIA for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Notes are
unsecured obligations of the Company. Subject to the covenants set forth
in the Indenture, the Company may issue Additional Notes.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph
5, the Company will not have the option to redeem the Notes prior to February
15, 2010. The Company is not prohibited by the terms of the Indenture, however,
from acquiring the Notes pursuant to an issuer tender offer, in open market
transactions or otherwise, so long as such acquisition does not otherwise
violate the terms of the Indenture. On or after February 15, 2010, the Company
will have the option to redeem all or a part of the Notes upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, on the Notes redeemed, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on February 15 of the years indicated below, subject to the rights of Holders of
Notes on the relevant record date to receive interest on the relevant interest
payment date:
Year Percentage
---- ----------
2010................................................... 105.625%
2011................................................... 102.813%
2012 and thereafter.................................... 100.000%
(b) At any time prior to February 15, 2009, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture at a redemption price equal to 111.250% of the
principal amount, plus accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings by the Company or a contribution to the Company's common equity
capital made with the net cash proceeds of one or more Equity Offerings by a
direct or indirect parent of the Company; provided that at least 65% in
aggregate principal amount of Notes originally issued under the Indenture
(excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption and that such redemption
occurs within 90 days of the date of the closing of such Equity Offering or
equity contribution.
(c) At any time prior to February 15, 2010, the Company may also redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days, prior
notice mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount of Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption (the "Make-Whole Redemption Date"),
subject to the rights of Holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date.
(d) Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
A1-3
(6) MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will be
required to make an offer (a "Change of Control Offer") to each Holder to
repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of each Holder's Notes at a purchase price in
cash equal to 101% of the aggregate principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date. Within 30 days
following any Change of Control, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.
(b) If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within ten days of each date on which the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company
will commence an offer, in accordance with the procedures set forth in
Section 3.09 of the Indenture, to all Holders of Notes and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in the Indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets (an "Asset Sale
Offer") pursuant to Section 3.09 of the Indenture 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 will be in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the date of purchase, and will be payable in cash, in accordance with
the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Restricted Subsidiary) may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and the Company or such other applicable party
shall select such other pari passu Indebtedness to be purchased on a pro
rata basis. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing the
form entitled "Option of Holder to Elect Purchase" attached to the Notes.
(8) NOTICE OF PURCHASE OR REDEMPTION. Notice of purchase or
redemption will be mailed at least 30 days but not more than 60 days
before the purchase or redemption date to each Holder whose Notes are to
be purchased or redeemed at its registered address, except that purchase
or redemption notices may be mailed more than 60 days prior to a purchase
or redemption date if the notice is issued in connection with a defeasance
of the Notes or a satisfaction or discharge of the Indenture. No Notes in
denominations of $2,000 or less shall be redeemed or purchased in part
unless all of the Notes held by a Holder are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. 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
will require a Holder to pay
A1-4
all taxes or similar government charges due on transfer or exchange. 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 the
mailing of a notice of redemption of Notes to be redeemed or during the
period between a record date and the next succeeding Interest Payment
Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes. Only registered Holders will have
rights under the Indenture.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes or the Note Guarantees may be
amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or Exchange Offer for, Notes), and, subject to Section 6.04
and 6.07 of the Indenture, any existing Default or Event of Default or
compliance with any provision of the Indenture or the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender
offer or Exchange Offer for, Notes). Without the consent of any Holder of
a Note, the Indenture or the Notes or the Note Guarantees 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 or a Guarantor's
obligations to Holders of the Notes and Note Guarantees in case of a
merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder,
to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA, to conform the text of
the Indenture, the Note Guarantees or the Notes to any provision of the
"Description of Notes" section of the Company's Offering Memorandum dated
February 1, 2006, relating to the initial offering of the Notes, to the
extent that such provision in that "Description of Notes" was intended to
be a verbatim recitation of a provision of the Indenture, the Note
Guarantees or the Notes, to provide for the issuance of Additional Notes
in accordance with the limitations set forth in the Indenture, to allow
any Guarantor to execute a supplemental indenture to the Indenture and/or
a Note Guarantee with respect to the Notes, to comply with the rules of
any applicable securities depository, to provide for a successor trustee
in accordance with the terms of the Indenture or to otherwise comply with
the requirements of the indenture, or to add a co-issuer or co-obligor of
the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Liquidated Damages,
if any, with respect to the Notes; (ii) default in the payment when due
(at maturity, upon redemption or otherwise) of the principal of, or
premium, if any, on, the Notes, (iii) failure by the Company or any of its
Restricted Subsidiaries to comply with Sections 4.10, 4.15 or 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class to comply with any of the other
agreements in the Indenture; (v) default under certain other agreements
relating to Indebtedness of the Company which default results in the
acceleration of such Indebtedness prior to its express maturity; (vi)
certain final and non-appealable judgments for the payment of money that
remain undischarged for a period of 60 days and, in the event such
judgment is covered by insurance, an enforcement proceeding has
A1-5
been commenced by any creditor upon such judgment or decree that is not
promptly stayed; (vii) except as permitted by the Indenture, any Note
Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf denies or disaffirms its
obligations under such Guarantor's Note Guarantee; (viii) certain events
of bankruptcy or insolvency described in the Indenture with respect to the
Company or any Restricted Subsidiary of the Company that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency (described in clause (viii) above), all
outstanding Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture or the TIA. Subject to certain
limitations, Holders of a majority in aggregate 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 or interest or premium or
Liquidated Damages, if any,) if it determines that withholding notice is
in their interest. The 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, rescind an acceleration or 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 or premium or Liquidated Damages, if any, on, or the principal
of, the Notes. The Company is required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company is
required, upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of
Default.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not the Trustee, subject
to the relevant provisions of the TIA.
(14) NO RECOURSE AGAINST OTHERS. A past, present or future
director, officer, employee, partner, manager, agent, member, incorporator
(or Person forming any limited liability company) or stockholder of the
Company or any of the Guarantors, as such, will not have any liability for
any obligations of the Company or the Guarantors under the Notes, the Note
Guarantees, the Registration Rights Agreement or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note and a Note Guarantee waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes and the Note Guarantees. Such
waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such waiver is against
public policy.
(15) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
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(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes will have all the rights set forth in the
Registration Rights Agreement dated as of February 7, 2006, between the
Company and the other parties named on the signature pages thereof or, in
the case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes will have the rights set forth in one or more
registration rights agreements, if any, between the Company and the other
parties thereto, relating to rights given by the Company to the purchasers
of any Additional Notes (collectively, the "Registration Rights
Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed
thereon.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
RathGibson, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature: ________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*: ______________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$______________
Date: _______________
Your Signature: ________________________
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.: ________________
Signature Guarantee*: _____________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A1-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount
Amount of Amount of of this Global Note Signature of
decrease in increase in following such authorized officer
Principal Amount Principal Amount decrease of Trustee or
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- ------------------- ------------------- ------------------- ------------------
* This schedule should be included only if the Note is issued in global
form.
A1-10
EXHIBIT A2
[Face of Regulation S Temporary Global Note]
--------------------------------------------------------------------------------
CUSIP/CINS _________
11.25% Senior Notes due 2014
No. ___ $__________
RATHGIBSON, INC.
promises to pay to CEDE & CO. or registered assigns,
the principal sum of __________________________________________________ DOLLARS
on February 15, 2014.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated: _______________, 200_
RATHGIBSON, INC.
By: ____________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By: _________________________________
Authorized Signatory
--------------------------------------------------------------------------------
A2-1
[Back of Regulation S Temporary Global Note]
11.25% Senior Notes due 2014
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF RATHGIBSON, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A
TRANSACTION
A2-2
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a) (1), (2), (3) OR
(7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")) THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. RathGibson, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
at 11.25% per annum from ________________, 20__ 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 will pay
interest and Liquidated Damages, if any, semi-annually in arrears on
February 15 and August 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each, an "Interest
Payment Date"). Interest, and Liquidated Damages, if any, on the Notes
will 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, or Liquidated
Damages, if any, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment
Date, interest and Liquidated Damages, if any, shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be _____________, 20__. The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal on demand at a rate that is equal to 1% per
annum in excess of the interest rate then in effect on the Notes to the
extent lawful; it will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest and Liquidated Damages, if any, will be computed on the
basis of a 360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged for one or more
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest hereon; until so exchanged in full, this Regulation
S Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
(2) METHOD OF PAYMENT. The Company will 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
February 1 or August 1 next preceding the Interest Payment Date, even if
such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be payable as to
principal, premium and Liquidated Damages, if any, and
A2-3
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; provided that payment by wire transfer of
immediately available funds will be required with respect to principal of
and interest, premium and Liquidated Damages, if any, on, all Global Notes
and all other Notes to the extent that the Holders thereof have provided
wire transfer instructions to the Company or the Paying Agent. Such
payment will 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.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York,
the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such
capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture
dated as of February 7, 2006 (the "Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and
the TIA for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Notes are
unsecured obligations of the Company. Subject to the covenants set forth
in the Indenture, the Company may issue Additional Notes.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this
Paragraph 5, the Company will not have the option to redeem the Notes
prior to February 15, 2010. The Company is not prohibited by the terms of
the Indenture, however, from acquiring the Notes pursuant to an issuer
tender offer, in open market transactions or otherwise, so long as such
acquisition does not otherwise violate the terms of the Indenture. On or
after February 15, 2010, the Company will have the option to redeem all or
a part of the Notes upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, on the Notes redeemed, to the applicable redemption date, if
redeemed during the twelve-month period beginning on February 15 of the
years indicated below, subject to the rights of Holders of Notes on the
relevant record date to receive interest on the relevant interest payment
date:
Year Percentage
---- ----------
2010................................................... 105.625%
2011................................................... 102.813%
2012 and thereafter.................................... 100.000%
(b) At any time prior to February 15, 2009, the Company may
on any one or more occasions redeem up to 35% of the aggregate principal
amount of Notes issued under the Indenture at a redemption price equal to
111.250% of the principal amount, plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date, with the net cash
proceeds of one or more Equity Offerings by the Company or a contribution
to the Company's common equity capital made with the net cash proceeds of
one or more Equity Offerings by a direct or indirect parent of the
Company; provided that at least 65% in aggregate principal amount of Notes
originally issued under the Indenture (excluding Notes held by the Company
and
A2-4
its Subsidiaries) remains outstanding immediately after the occurrence of
such redemption and that such redemption occurs within 90 days of the date
of the closing of such Equity Offering or equity contribution.
(c) At any time prior to February 15, 2010, the Company may
also redeem all or a part of the Notes, upon not less than 30 nor more
than 60 days prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to 100% of the principal
amount of Notes redeemed plus the Applicable Premium as of, and accrued
and unpaid interest and Liquidated Damages, if any, to the date of
redemption (the "Make-Whole Redemption Date"), subject to the rights of
Holders of Notes on the relevant record date to receive interest due on
the relevant interest payment date.
(d) Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date.
(6) MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will be
required to make an offer (a "Change of Control Offer") to each Holder to
repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of each Holder's Notes at a purchase price in
cash equal to 101% of the aggregate principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date. Within 30 days
following any Change of Control, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.
(b) If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within ten days of each date on which the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company
will commence an offer, in accordance with the procedures set forth in
Section 3.09 of the Indenture, to all Holders of Notes and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in the Indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets (an "Asset Sale
Offer") pursuant to Section 3.09 of the Indenture 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 will be in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the date of purchase, and will be payable in cash, in accordance with
the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Restricted Subsidiary) may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and the Company or such other applicable party
shall select such other pari passu Indebtedness to be purchased on a pro
rata basis. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any
A2-5
related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" attached
to the Notes.
(8) NOTICE OF PURCHASE OR REDEMPTION. Notice of purchase or
redemption will be mailed at least 30 days but not more than 60 days
before the purchase or redemption date to each Holder whose Notes are to
be purchased or redeemed at its registered address, except that purchase
or redemption notices may be mailed more than 60 days prior to a purchase
or redemption date if the notice is issued in connection with a defeasance
of the Notes or a satisfaction or discharge of the Indenture. No Notes in
denominations of $2,000 or less shall be redeemed or purchased in part
unless all of the Notes held by a Holder are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. 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
will require a Holder to pay all taxes or similar government charges due
on transfer or exchange. 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 the mailing of a notice of redemption of Notes to
be redeemed or during the period between a record date and the next
succeeding Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Global Notes only (i) on or after the termination of the
40-day distribution compliance period (as defined in Regulation S) and (ii) upon
presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Note for one or more Global Notes, the Trustee
shall cancel this Regulation S Temporary Global Note.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes. Only registered Holders will have
rights under the Indenture.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes or the Note Guarantees may be
amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or Exchange Offer for, Notes), and, subject to Section 6.04
and 6.07 of the Indenture, any existing Default or Event of Default or
compliance with any provision of the Indenture or the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender
offer or Exchange Offer for, Notes). Without the consent of any Holder of
a Note, the Indenture or the Notes or the Note Guarantees 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 or a Guarantor's
obligations to Holders of the Notes and Note Guarantees in case of a
merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder,
to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA, to conform the text of
A2-6
the Indenture, the Note Guarantees or the Notes to any provision of the
"Description of Notes" section of the Company's Offering Memorandum dated
February 1, 2006, relating to the initial offering of the Notes, to the
extent that such provision in that "Description of Notes" was intended to
be a verbatim recitation of a provision of the Indenture, the Note
Guarantees or the Notes, to provide for the issuance of Additional Notes
in accordance with the limitations set forth in the Indenture, to allow
any Guarantor to execute a supplemental indenture to the Indenture and/or
a Note Guarantee with respect to the Notes, to comply with the rules of
any applicable securities depository, to provide for a successor trustee
in accordance with the terms of the Indenture or to otherwise comply with
the requirements of the Indenture, or to add a co-issuer or co-obligor of
the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Liquidated Damages,
if any, with respect to the Notes; (ii) default in the payment when due
(at maturity, upon redemption or otherwise) of the principal of, or
premium, if any, on, the Notes, (iii) failure by the Company or any of its
Restricted Subsidiaries to comply with Sections 4.10, 4.15 or 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class to comply with any of the other
agreements in the Indenture; (v) default under certain other agreements
relating to Indebtedness of the Company which default results in the
acceleration of such Indebtedness prior to its express maturity; (vi)
certain final and non-appealable judgments for the payment of money that
remain undischarged for a period of 60 days and, in the event such
judgment is covered by insurance, an enforcement proceeding has been
commenced by any creditor upon such judgment or decree that is not
promptly stayed; (vii) except as permitted by the Indenture, any Note
Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf denies or disaffirms its
obligations under such Guarantor's Note Guarantee; (viii) certain events
of bankruptcy or insolvency described in the Indenture with respect to the
Company or any Restricted Subsidiary of the Company that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency (described in clause (viii) above), all
outstanding Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture or the TIA. Subject to certain
limitations, Holders of a majority in aggregate 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 or interest or premium or
Liquidated Damages, if any,) if it determines that withholding notice is
in their interest. The 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, rescind an acceleration or 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 or premium or Liquidated Damages, if any, on, or the principal
of, the Notes. The Company is required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company is
required, upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of
Default.
A2-7
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not the Trustee, subject
to the relevant provisions of the TIA.
(14) NO RECOURSE AGAINST OTHERS. A past, present or future
director, officer, employee, partner, manager, agent, member incorporator
(or Person forming any limited liability company) or stockholder of the
Company or any of the Guarantors, as such, will not have any liability for
any obligations of the Company or the Guarantors under the Notes, the Note
Guarantees, the Registration Rights Agreement or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note and a Note Guarantee waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes and the Note Guarantees. Such
waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such waiver is against
public policy.
(15) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of this
Regulation S Temporary Global Note will have all the rights set forth in
the Registration Rights Agreement dated as of February 7, 2006, between
the Company and the other parties named on the signature pages thereof or,
in the case of Additional Notes, Holders thereof will 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 and the Guarantors to the purchasers of any
Additional Notes (collectively, the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed
thereon.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
RathGibson, Inc.
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A2-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature: ________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*: ______________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_____________
Date: _______________
Your Signature: ________________________
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.: ________________
Signature Guarantee*: _______________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A2-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or exchanges of a part of another
other Restricted Global Note for an interest in this Regulation S Temporary
Global Note, have been made:
Principal Amount
Amount of Amount of of this Global Note Signature of
decrease in increase in following such authorized officer
Principal Amount Principal Amount decrease of Trustee or
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
________________ ___________________ ___________________ ___________________ __________________
A2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
RathGibson, Inc.
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The Bank of New York
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Re: 11.25% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of February 7, 2006
(the "Indenture"), among RathGibson, Inc., as issuer (the "Company") and The
Bank of New York, 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 WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S PERMANENT GLOBAL NOTE
OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser).
B-1
Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Permanent Global Note, the Regulation S
Temporary Global Note and/or the Restricted Definitive Note and in the Indenture
and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144, Rule
903 or Rule 904, and the Transferor hereby further certifies that it has
not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global
Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Restricted Definitive Notes and
in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or
B-2
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
________________________________________
[Name of Transferor]
By: ____________________________________
Name:
Title:
Dated: ____________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP ______), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
RathGibson, Inc.
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The Bank of New York
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Re: RathGibson, Inc. 11.25% Senior Notes due 2014
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of February 7, 2006
(the "Indenture"), between RathGibson, Inc., as issuer (the "Company"), and the
Bank of New York, 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 DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in
C-1
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
[ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
____________________________________
[Name of Transferor]
By: ____________________________________
Name:
Title:
Dated: ____________________
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
RathGibson, Inc.
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The Bank of New York
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Re: RathGibson, Inc. 11.25% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of February 7, 2006
(the "Indenture"), between RathGibson, Inc., as issuer (the "Company"), and The
Bank of New York, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
D-1
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
________________________________________
[Insert Name of Accredited Investor]
By:____________________________________
Name:
Title:
Dated: _______________________________
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EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of February 7, 2006 (the "Indenture")
between RathGibson, Inc., (the "Company") and The Bank of New York, as trustee
(the "Trustee"), (a) the due and punctual payment of the principal of, premium
and Liquidated Damages, if any, and interest on, the Notes, whether at maturity,
by acceleration, redemption or otherwise, the due and punctual payment of
(including any interest, if lawful, on overdue principal of, and interest or
Liquidated Damages, if any, on the Notes), 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 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. 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 10 of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given to
them in the Indenture.
[NAME OF GUARANTOR(S)]
By: ____________________________________
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 200__, among _________________ (the "Guaranteeing
Subsidiary"), a subsidiary of RathGibson, Inc. (or its permitted successor), a
Delaware corporation (the "Company"), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and The Bank of New York, as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of February 7, 2006 providing for the
issuance of 11.25% Senior Notes due 2014 (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 to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited
to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, partner, manager, incorporator (or Persons forming a limited
liability company), stockholder or agent or member 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, the Registration Rights Agreement 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 and a Note
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and the Note Guarantees.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
F-1
EXHIBIT F
5. 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.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. THE 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.
F-2
EXHIBIT F
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: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
RATHGIBSON, INC.
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _______________________________
Authorized Signatory
F-3