EXHIBIT 4.6
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XXXXX XXXXX XXXXXXX FINANCE INC.
and
Bank One, N.A., as Trustee
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INDENTURE
Dated as of March 14, 2003
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$403,000,000 7-7/8 % Notes Due 2011
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1)............................................................... 7.10
(a)(2)............................................................... 7.10
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(a)(5)............................................................... 7.10
(b).................................................................. 7.08; 7.10
(b)(1)............................................................... 7.10
(c).................................................................. N.A.
311(a).................................................................. 7.11
(b).................................................................. 7.11
(c).................................................................. N.A.
312(a).................................................................. 2.06
(b).................................................................. 12.03
(c).................................................................. 12.03
313(a).................................................................. 7.06
(b).................................................................. 7.08
(b)(1)............................................................... N.A.
(b)(2)............................................................... 7.06; 11.04
(c).................................................................. 7.06; 11.04
(d).................................................................. 7.06
314(a).................................................................. 4.06; 4.18; 12.04
(b).................................................................. 11.02
(c)(1)............................................................... 12.04
(c)(2)............................................................... 12.04
(c)(3)............................................................... N.A.
(d).................................................................. 11.04
(e).................................................................. 12.05
(f).................................................................. N.A.
315(a).................................................................. 7.01(b)
(b).................................................................. 7.05
(c).................................................................. 7.01(a)
(d).................................................................. 7.01(c)
(e).................................................................. 6.12
316(a) (last sentence).................................................. 2.10
(a)(1)(A)............................................................ 6.05
(a)(1)(B)............................................................ 6.04
(a)(2)............................................................... N.A.
(b).................................................................. 6.08
(c).................................................................. 8.04
317(a)(1)............................................................... 6.09
(a)(2)............................................................... 6.10
(b).................................................................. 2.05; 7.12
318(a).................................................................. 12.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions........................................................................ 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.................................. 38
SECTION 1.03. Rules of Construction.............................................................. 39
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes.................................................................... 40
SECTION 2.02. Form and Dating.................................................................... 40
SECTION 2.03. Execution and Authentication....................................................... 40
SECTION 2.04. Registrar and Paying Agent......................................................... 41
SECTION 2.05. Paying Agent To Hold Money in Trust................................................ 42
SECTION 2.06. Holder Lists....................................................................... 42
SECTION 2.07. Transfer and Exchange.............................................................. 42
SECTION 2.08. Replacement Notes.................................................................. 43
SECTION 2.09. Outstanding Notes.................................................................. 43
SECTION 2.10. Treasury Notes..................................................................... 44
SECTION 2.11. Temporary Notes.................................................................... 44
SECTION 2.12. Cancellation....................................................................... 44
SECTION 2.13. Defaulted Interest................................................................. 45
SECTION 2.14. CUSIP Number....................................................................... 45
SECTION 2.15. Deposit of Moneys.................................................................. 45
SECTION 2.16. Book-Entry Provisions for Global Notes............................................. 46
SECTION 2.17. Special Transfer Provisions........................................................ 47
SECTION 2.18. Computation of Interest............................................................ 50
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee............................................. 50
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed....................................... 50
SECTION 3.03. Notice of Redemption............................................................... 51
SECTION 3.04. Effect of Notice of Redemption..................................................... 52
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SECTION 3.05. Deposit of Redemption Price........................................................ 52
SECTION 3.06. Notes Redeemed in Part............................................................. 53
SECTION 3.07. Special Mandatory Redemption; Notices to Trustee and Securities Intermediary....... 53
SECTION 3.08. Notice of Special Mandatory Redemption to Holders.................................. 53
SECTION 3.09. Effect of Notice of Special Mandatory Redemption................................... 54
SECTION 3.10. Deposit of Special Mandatory Redemption Price...................................... 54
SECTION 3.11. Other Mandatory Redemption......................................................... 54
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes................................................................... 54
SECTION 4.02. Maintenance of Office or Agency.................................................... 55
SECTION 4.03. Legal Existence.................................................................... 55
SECTION 4.04. Maintenance of Properties; Insurance; Compliance with Law.......................... 56
SECTION 4.05. Waiver of Stay, Extension or Usury Laws............................................ 56
SECTION 4.06. Compliance Certificate............................................................. 57
SECTION 4.07. Payment of Taxes and Other Claims.................................................. 57
SECTION 4.08. Repurchase at the Option of Holders upon Change of Control......................... 58
SECTION 4.09. Limitation on Debt................................................................. 60
SECTION 4.10. Limitation on Restricted Payments.................................................. 64
SECTION 4.11. Limitation on Liens................................................................ 69
SECTION 4.12. Limitation on Asset Sales.......................................................... 69
SECTION 4.13. Limitation on Restrictions on Distributions from Restricted Subsidiaries........... 73
SECTION 4.14. Limitation on Transactions with Affiliates......................................... 76
SECTION 4.15. Designation of Restricted and Unrestricted Subsidiaries............................ 78
SECTION 4.16. Creation of Subsidiaries; Additional Subsidiary Guarantees......................... 79
SECTION 4.17. Limitation of Company's Business................................................... 80
SECTION 4.18. Reports to Holders................................................................. 80
SECTION 4.19. Covenant Suspension................................................................ 81
SECTION 4.20. Additional Amounts................................................................. 82
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Property......................................... 83
SECTION 5.02. Successor Person Substituted....................................................... 86
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.................................................................. 86
SECTION 6.02. Acceleration of Maturity; Rescission............................................... 88
SECTION 6.03. Other Remedies..................................................................... 90
SECTION 6.04. Waiver of Past Defaults and Events of Default...................................... 90
SECTION 6.05. Control by Majority................................................................ 91
SECTION 6.06. Limitation on Suits................................................................ 91
SECTION 6.07. No Personal Liability of Directors, Officers, Employees and Stockholders........... 92
SECTION 6.08. Rights of Holders To Receive Payment............................................... 92
SECTION 6.09. Collection Suit by Trustee......................................................... 92
SECTION 6.10. Trustee May File Proofs of Claim................................................... 92
SECTION 6.11. Priorities......................................................................... 93
SECTION 6.12. Undertaking for Costs.............................................................. 93
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.................................................................. 94
SECTION 7.02. Rights of Trustee.................................................................. 95
SECTION 7.03. Individual Rights of Trustee....................................................... 97
SECTION 7.04. Trustee's Disclaimer............................................................... 97
SECTION 7.05. Notice of Defaults................................................................. 97
SECTION 7.06. Reports by Trustee to Holders...................................................... 97
SECTION 7.07. Compensation and Indemnity......................................................... 98
SECTION 7.08. Replacement of Trustee............................................................. 99
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.................................... 100
SECTION 7.10. Eligibility; Disqualification...................................................... 100
SECTION 7.11. Preferential Collection of Claims Against Company.................................. 101
SECTION 7.12. Paying Agents...................................................................... 101
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ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. Without Consent of Holders......................................................... 101
SECTION 8.02. With Consent of Holders............................................................ 102
SECTION 8.03. Compliance with Trust Indenture Act................................................ 104
SECTION 8.04. Revocation and Effect of Consents.................................................. 104
SECTION 8.05. Notation on or Exchange of Notes................................................... 104
SECTION 8.06. Trustee To Sign Amendments, etc.................................................... 105
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Liability on Notes; Defeasance........................................ 105
SECTION 9.02. Conditions to Defeasance........................................................... 107
SECTION 9.03. Deposited Money and Government Obligations To Be Held in Trust;
Other Miscellaneous Provisions.................................................. 108
SECTION 9.04. Reinstatement...................................................................... 109
SECTION 9.05. Moneys Held by Paying Agent........................................................ 109
SECTION 9.06. Moneys Held by Trustee............................................................. 109
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee.......................................................................... 110
SECTION 10.02. Execution and Delivery of Guarantee................................................ 111
SECTION 10.03. Release of Guarantors.............................................................. 112
SECTION 10.04. Waiver of Subrogation.............................................................. 112
SECTION 10.05. Notice to Trustee.................................................................. 113
SECTION 10.06. Subordination of Subordinated Subsidiary Guarantees................................ 114
ARTICLE ELEVEN
SECURITY DOCUMENTS
SECTION 11.01. Security Documents................................................................. 116
SECTION 11.02. Recording and Opinions............................................................. 116
SECTION 11.03. Release of Collateral.............................................................. 117
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SECTION 11.04. Certificates of the Company........................................................ 117
SECTION 11.05. Certificates of the Trustee........................................................ 118
SECTION 11.06. Authorization of Actions To Be Taken by the Trustee Under the Security Documents... 118
SECTION 11.07. Authorization of Receipt of Funds by the Trustee Under the Security Documents...... 118
SECTION 11.08. Termination of Security Interest................................................... 119
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls....................................................... 118
SECTION 12.02. Notices............................................................................ 119
SECTION 12.03. Communications by Holders with Other Holders....................................... 121
SECTION 12.04. Certificate and Opinion as to Conditions Precedent................................. 121
SECTION 12.05. Statements Required in Certificate and Opinion..................................... 121
SECTION 12.06. Rules by Trustee and Agents........................................................ 122
SECTION 12.07. Legal Holidays..................................................................... 122
SECTION 12.08. Governing Law...................................................................... 122
SECTION 12.09. No Adverse Interpretation of Other Agreements...................................... 122
SECTION 12.10. Successors......................................................................... 122
SECTION 12.11. Multiple Counterparts.............................................................. 122
SECTION 12.12. Consent To Jurisdiction And Service Of Process..................................... 123
SECTION 12.13. Conversion of Currency............................................................. 123
SECTION 12.14. Currency Equivalent................................................................ 125
SECTION 12.15. Table of Contents, Headings, etc................................................... 125
SECTION 12.16. Separability....................................................................... 125
EXHIBITS
Exhibit A. Form of Note....................................................................... A-1
Exhibit B. Form of Legend for Rule 144A Notes and Other Notes That Are Restricted Notes....... B-1
Exhibit C. Form of Legend for Regulation S Note............................................... C-1
Exhibit D. Form of Legend for Global Note..................................................... D-1
Exhibit E. Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S............................................. E-1
Exhibit F. Form of Guarantee.................................................................. F-1
Exhibit G. Form of Certificate from Acquiring Institutional
Accredited Investor............................................................ G-1
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INDENTURE, dated as of March 14, 2003, among XXXXX NORTH AMERICA
FINANCE INC., a Delaware corporation, as issuer (the "Company"), the Guarantors
named herein and Bank One, N.A., a national banking association, as trustee (the
"Trustee").
On and after the Release Date, the Notes will be Guaranteed by the
Guarantors (as defined herein).
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means Debt of a Person existing at the time such
Person becomes a Restricted Subsidiary or merges or consolidates with or into
the Company or a Guarantor or Restricted Subsidiary, or assumed in connection
with the acquisition of assets from such Person and, in any case, such Debt was
not Incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or such merger, consolidation or acquisition. Acquired
Debt shall be deemed to be Incurred on the date the acquired Person becomes a
Restricted Subsidiary or the date of such merger, consolidation or acquisition
and all Debt of Xxxxxxx and its Subsidiaries outstanding on the date of the
Release shall be Acquired Debt.
"Acquisition" means the consummation, on the date of the Release, of
the acquisition by Xxxxx Corporation Limited, a Canadian corporation, or one of
its subsidiaries, of Xxxxxxx Computer Services, Inc., a Delaware corporation, in
accordance with the terms of the Acquisition Agreement and the transactions
related thereto.
"Acquisition Agreement" means the Agreement and Plan of Merger among
Xxxxx, X-X Acquisition, Inc. and Xxxxxxx Computer Services, Inc., dated as of
January 16, 2003, as it may be amended in accordance with the terms thereof.
"Additional Amounts" has the meaning set forth in Section 4.20.
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"Additional Assets" means:
(a) any Property (other than cash, Temporary Cash Investments and
securities) to be owned by a Guarantor or any Restricted Subsidiary and
used in the business of a Guarantor or a Restricted Subsidiary in a
Related Business; or
(b) Capital Stock of a Person that is or becomes a Restricted
Subsidiary upon or as a result of the acquisition of such Capital Stock by
the Company, a Guarantor or another Restricted Subsidiary from any Person
other than the Company or an Affiliate of the Company; provided, however,
that, in the case of this clause (b), such Restricted Subsidiary is
primarily engaged in a Related Business.
"Additional Notes" has the meaning set forth in Section 2.01.
"Affiliate" of any specified Person means:
(a) any Person who is a director or officer of:
(1) such specified Person,
(2) any Subsidiary of such specified Person, or
(3) any Person described in clause (b) below.
(b) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified Person.
For the purposes of this definition, "control", when used with
respect to any Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. For purposes of
Sections 4.12 and 4.14 and the definition of "Additional Assets" only,
"Affiliate" shall also mean any beneficial owner of shares representing 10% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of
the Company, Xxxxx XX or either Parent or Xxxxxxx and any Person who would be an
Affiliate of any such beneficial owner pursuant to the first sentence hereof.
Notwithstanding the foregoing, no Person (other than the Company, a Guarantor or
a Restricted Subsidiary) in whom a Securitization Entity makes an Investment in
connection with a Qualified Securitization Transaction shall be deemed an
Affiliate of the Company, a Guarantor or any Restricted Subsidiary solely by
reason of such Investment.
"Affiliate Transaction" has the meaning set forth in Section 4.14.
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"Agent" means any Registrar, Paying Agent, or agent for service or
notices and demands.
"Agent Members" has the meaning set forth in Section 2.16.
"Allocable Excess Proceeds" has the meaning set forth in Section
4.12(e).
"Alternate Offer" has the meaning set forth in Section 4.08(e).
"amend" means amend, modify, supplement, restate or amend and
restate, including successively; and "amending" and "amended" have correlative
meanings.
"Asset Sale" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company, a Guarantor or any Restricted Subsidiary,
including any disposition by means of a merger, consolidation or similar
transaction (each referred to for the purposes of this definition as a
"disposition"), of
(a) any shares of Capital Stock of a Restricted Subsidiary (other
than directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company, a Guarantor or a Restricted
Subsidiary),
(b) all or substantially all of the properties and assets of any
division or line of business of the Company, a Guarantor or any Restricted
Subsidiary, or
(c) any other assets of the Company, a Guarantor or any Restricted
Subsidiary outside of the ordinary course of business of the Company, such
Guarantor or Restricted Subsidiary;
other than, in the case of clause (a), (b) or (c) above,
(1) any disposition by the Company, a Guarantor or a Restricted
Subsidiary to the Company, a Guarantor, a Restricted Subsidiary or any
Person (if after giving effect to such transfer such other Person becomes
a Restricted Subsidiary),
(2) any disposition that constitutes a Permitted Investment or
Restricted Payment permitted by Section 4.10,
(3) any disposition effected in compliance with Section 5.01,
(4) any sale or other disposition of cash or Temporary Cash
Investments,
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(5) any disposition of obsolete, worn out or permanently retired
equipment or facilities or other property that is no longer used or useful
in the ordinary course of the business of the Company, a Guarantor or any
Restricted Subsidiary,
(6) any disposition of Receivables and Related Assets in a Qualified
Securitization Transaction for the Fair Market Value thereof, including
cash or Temporary Cash Investments in an amount at least equal to 75% of
the Fair Market Value thereof,
(7) for purposes of Section 4.12, any disposition the net proceeds
of which to the Company, a Guarantor and the Restricted Subsidiaries do
not exceed $15 million in any transaction or series of related
transactions,
(8) the licensing or sublicensing of intellectual property or other
general intangibles and licenses, leases or subleases of other property in
the ordinary course of business which do not materially interfere with the
business of the Company, the Guarantors and the Restricted Subsidiaries,
(9) any release of intangible claims or rights in connection with
the loss or settlement of a bona fide lawsuit, dispute or other
controversy,
(10) the surrender or waiver of contract rights or the settlement,
release or surrender of contract, tort or other claims of any kind, and
(11) the disposition of Peak Technologies Inc. and its subsidiaries
for consideration at least equal to its Fair Market Value and that
satisfies clause (b) of the first paragraph of Section 4.12.
"Average Life" means, as of any date of determination, with respect
to any Debt or Preferred Stock, the quotient obtained by dividing:
(a) the sum of the products of (1) the number of years (rounded to
the nearest one-twelfth of one year) from the date of determination to the
dates of each successive scheduled principal payment of such Debt or
redemption or similar payment with respect to such Preferred Stock
multiplied by (2) the amount of such payment by
(b) the sum of all such payments.
"Base Currency" has the meaning set forth in Section 12.13 hereof.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar U.S.
Federal or state law, the Bankruptcy and Insolvency Act (Canada), the Companies'
Creditors Arrangement Act (Canada) or any other Canadian federal or provincial
law or law of any other
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jurisdiction relating to bankruptcy, insolvency, winding-up, liquidation,
reorganization or relief of debtors.
"Board of Directors" means, with respect to any Person, the board of
directors, or any equivalent management entity, of such Person or any committee
thereof duly authorized to act on behalf of such board.
"Board Resolution" means, with respect to any Person, a copy of a
resolution of such Person's Board of Directors, certified by the Secretary or an
Assistant Secretary, or an equivalent officer, of such Person to have been duly
adopted by the Board of Directors of such Person and to be in full force and
effect on the date of such certification.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized or
required by law to close.
"Canadian Guarantor" has the meaning set forth in Section 4.20.
"Capital Lease Obligations" means any obligation under a lease that
is required to be capitalized for financial reporting purposes in accordance
with GAAP; and the amount of Debt represented by such obligation shall be the
capitalized amount of such obligation determined 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 terminated by the lessee without payment of a penalty. For purposes of
Section 4.11, a Capital Lease Obligation shall be deemed secured by a Lien on
the Property being leased.
"Capital Stock" means, with respect to any Person, any shares or
other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest prior to conversion or exchange.
"Capital Stock Sale Proceeds" means the aggregate cash proceeds
received by the Company or a Guarantor from the issuance or sale (other than to
the Company, a Guarantor or a Restricted Subsidiary or to an employee stock
ownership plan or trust established by the Company, a Guarantor or a Restricted
Subsidiary for the benefit of its employees and except to the extent that any
purchase made pursuant to such issuance or sale is financed by the Company,
Xxxxx, Xxxxx XX, Xxxxxxx or any Restricted Subsidiary) by it of its Capital
Stock (including upon the exercise of options, warrants or rights) (other than
Disqualified Stock) or warrants, options or rights to purchase its Capital Stock
(other than Disqualified Stock) after the Issue Date (other than to finance part
of the purchase price of the Acquisition), net of at-
-6-
torneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
Incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Change of Control" means the occurrence of any of the following
events:
(1) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
50% or more of the total voting power of the Voting Stock of Xxxxx (for
the purpose of this clause (1), a Person shall be deemed to beneficially
own the Voting Stock of a corporation that is beneficially owned (as
defined above) by another corporation (a "parent corporation") if such
Person beneficially owns (as defined above) at least 50% of the aggregate
voting power of all classes of Voting Stock of such parent corporation);
(2) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of Xxxxx
(together with any new directors whose election by such Board of Directors
or whose nomination for election by the applicable shareholders was
approved or ratified by a vote of more than 50% of the Board of Directors
of Xxxxx then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved or ratified) cease for any reason to constitute a majority of
such Board of Directors then in office;
(3) the adoption of a plan relating to the liquidation or
dissolution of either Xxxxx or the Company;
(4) the merger or consolidation of Xxxxx with or into another Person
or the merger of another Person with or into Xxxxx, or the sale of all or
substantially all the assets of Xxxxx and its Restricted Subsidiaries,
taken as a whole, to another Person, and, in the case of any such merger
or consolidation, the securities of the entity to be merged that are
outstanding immediately prior to such transaction and that represent 100%
of the aggregate voting power of the Voting Stock of such entity, are
changed into or exchanged for cash, securities or Property, unless
pursuant to such transaction such securities are changed into or exchanged
for, in addition to any other consideration, securities of the surviving
corporation that represent immediately after such transaction at least a
majority of the aggregate voting power of the Voting Stock of the
surviving corporation; or
(5) the Company is no longer a direct or indirect wholly owned
Subsidiary of Xxxxx.
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For purposes of this definition of "Change of Control", references
to Xxxxx mean Xxxxx and its successors or assigns.
"Change of Control Offer" has the meaning set forth in Section 4.08.
"Change of Control Payment Date" has the meaning set forth in
Section 4.08.
"Change of Control Purchase Price" has the meaning set forth in
Section 4.08.
"Clearstream" has the meaning set forth in Section 2.16.
"Collateral" has the meaning set forth in Section 6(a) of the Escrow
and Pledge Agreement.
"Combined Consolidated Net Income" means the aggregate of the
Consolidated Net Income of the Company, the Guarantors and the Restricted
Subsidiaries, without duplication.
"Combined Consolidated Net Tangible Assets" means the aggregate of
the Consolidated Net Tangible Assets of the Company, the Guarantors and the
Restricted Subsidiaries, without duplication.
"Commission" means the U.S. Securities and Exchange Commission.
"Commodity Price Protection Agreement" means, in respect of a
Person, any forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in commodity prices.
"Company" means the party named as such in the first paragraph of
this Indenture, until a successor replaces such party pursuant to Article Five
and thereafter means the successor.
"Consolidated Current Liabilities" means, for any Person, as of any
date of determination, the aggregate amount of liabilities of such Person and
its Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), as of such date on a
consolidated basis, after eliminating:
(1) all intercompany items between such Person and any Restricted
Subsidiary and
(2) all current maturities of long-term Debt,
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all as determined in accordance with GAAP consistently applied.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such Person for such period, plus in each
case, without duplication:
(a) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period to the extent that such
provision for taxes was included in computing such Consolidated Net
Income;
(b) 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;
(c) depreciation and amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation and amortization were deducted in computing such Consolidated
Net Income;
(d) expenses or charges relating to the refinancing or repayment of
debt, including the write-off of deferred financing costs and any premiums
relating to such refinancing or repayment of such Person, to the extent
that such charges were deducted in computing such Consolidated Net Income;
(e) charges relating to the purchase or other acquisition of Capital
Stock to the extent that such charges were deducted in computing such
Consolidated Net Income; and
(f) any non-cash charges reducing Consolidated Net Income for such
period (excluding any such non-cash charge to the extent that it
represents an accrual of or a reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a prior
period); minus
(g) any non-cash items increasing Consolidated Net Income for such
period (without duplication, excluding any reversal of a reserve for cash
expense, if the establishment of such reserve had previously decreased
Consolidated Net Income).
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum of, without duplication:
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(1) the aggregate of the net interest expense of such Person and its
Restricted Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP, including, without limitation: (a) any
amortization of debt discount; (b) the net costs under Interest Rate
Agreements; (c) all capitalized interest; and (d) the interest portion of
any deferred payment obligation; and
(2) the interest component of Capital Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person and its
Restricted Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income" means, for any Person for any period, the
consolidated net income (loss) of such Person and its Restricted Subsidiaries
for such period on a consolidated basis prior to any adjustment to net income
for any preferred stock (other than Disqualified Stock) as determined in
accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income:
(a) the net income of any Person (the "other Person") in which the
Person in question or any of its Restricted Subsidiaries has less than a
100% interest (which interest does not cause the net income of such other
Person to be consolidated into the net income of the Person in question in
accordance with GAAP) except for the amount of dividends or distributions
paid to the Person in question or to the Subsidiary;
(b) any net income of any Restricted Subsidiary of the Person in
question that is subject to any restriction or limitation on the payment
of dividends or the making of other distributions (other than, if
applicable, pursuant to the Notes or under this Indenture) to the extent
of such restriction or limitation;
(c) any net gain or loss realized upon the sale or other disposition
of any Property of such Person or any of its consolidated Subsidiaries
(including pursuant to any sale and leaseback transaction) that is not
sold or otherwise disposed of in the ordinary course of business;
(d) any net after-tax extraordinary gain or loss;
(e) the cumulative effect of a change in accounting principles;
(f) any non-cash compensation expense realized for grants of stock
appreciation or similar rights, stock options, Capital Stock or other
rights to officers, directors and employees of such Person or a Subsidiary
of such Person, provided that such rights (if redeemable), options or
other rights can be redeemed at the option of the holder only for Capital
Stock of such Person (other than Disqualified Stock) or Capital Stock of a
direct or indirect parent of such Person;
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(g) to the extent non-cash, any unusual, non-operating or
non-recurring gain or loss;
(h) interest expense related to the Notes and the Credit Agreement
prior to the Release to the extent in excess of any interest income earned
on the Escrowed Property or the funds held pursuant to the Credit Facility
Escrow Arrangements; and
(i) expenses or charges (whether cash or non-cash) related to the
Acquisition and any restructuring related thereto, including any refunding
or refinancing expenses related to Debt repaid or refinanced.
Notwithstanding the foregoing, to avoid duplication, for purposes of
Section 4.10 only, there shall be excluded from Consolidated Net Income any
dividends, repayments of loans or advances or other transfers of assets from
Unrestricted Subsidiaries to the Company, a Guarantor or a Restricted Subsidiary
to the extent such dividends, repayments or transfers increase the amount of
Restricted Payments permitted under Section 4.10 pursuant to clause (b)(3)(iv)
thereof.
"Consolidated Net Tangible Assets" means, for any Person as of any
date of determination, the total amount of assets (less accumulated depreciation
and amortization, allowances for doubtful receivables and other applicable
reserves) which would appear on a consolidated balance sheet of such Person and
the Restricted Subsidiaries, as of such date determined on a consolidated basis
in accordance with GAAP, and after giving effect to purchase accounting and
after deducting therefrom Consolidated Current Liabilities and, to the extent
not otherwise included, the amounts of:
(1) minority interests in consolidated Subsidiaries held by Persons
other than the Company, a Guarantor or a Restricted Subsidiary;
(2) excess of cost over fair value of assets of businesses acquired,
as determined in good faith by the Board of Directors of such Person and
the Board of Directors of Xxxxx;
(3) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade
names, copyrights, licenses, organization or developmental expenses and
other intangible items;
(4) cash set apart and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of Capital
Stock to the extent such obligation is not reflected in Consolidated
Current Liabilities; and
(5) investments in and assets of Unrestricted Subsidiaries.
-11-
"Corporate Trust Office" means the principal office of the Trustee
at which at any time this Indenture shall be administered, which office at the
date hereof is located at 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxx
60670-0430, Attention: Corporate Trust Administration, or such other address as
the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Covenant Defeasance" has the meaning set forth in Section 9.01.
"Credit Agreement" means the Credit Agreement, dated as of the Issue
Date, among Xxxxx, Xxxxx Holdings, the lenders party thereto in their capacities
as lenders thereunder, Citicorp North America, Inc., as administrative agent,
and Deutsche Bank Securities Inc., as syndication agent, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified (including to increase the amount of available borrowings
thereunder or to add Restricted Subsidiaries as additional borrowers or
guarantors thereunder) from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder or adding Restricted
Subsidiaries as additional borrowers or guarantors thereunder) all or any
portion of the Debt under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders.
"Credit Facility" means the Credit Agreement and one or more debt or
commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables or inventory financing
(including through the sale of receivables or inventory to such lenders or to
special purpose, bankruptcy remote entities formed to borrow from such lenders
against such receivables or inventory) or trade letters of credit, or other
forms of guarantees or assurances that one or more times refinance, replace,
supplement, modify or amend such credit facility (including increasing the
amount of available borrowings thereunder or adding obligors as additional
borrowers or guarantors thereunder) or all or any portion of the Debt under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"Credit Facility Escrow Arrangements" means the escrow account and
related agreements pursuant to which the proceeds of certain borrowings under
the Credit Agreement made by the Company or an Affiliate of the Company prior to
the Release will be placed into escrow until the closing under the Acquisition
Agreement.
"Currency Exchange Protection Agreement" means, in respect of a
Person, any foreign exchange contract, currency swap agreement, futures
contract, currency option, syn-
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thetic cap or other similar agreement or arrangement designed to protect such
Person against fluctuations in currency exchange rates.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
"Deadline" means August 31, 2003, or such earlier date as Xxxxx
determines that it will not pursue the consummation of the Acquisition.
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of and premium (if any, but only in the event such
premium has become due) in respect of:
(1) debt of such Person for borrowed money, and
(2) debt evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is
responsible or liable;
(b) all Capital Lease Obligations of such Person;
(c) all obligations of such Person issued or assumed as the deferred
purchase price of Property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable for goods and services
arising in the ordinary course of business);
(d) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit,
performance bonds or surety bonds securing obligations (other than
obligations described in (a) through (c) above) provided in the ordinary
course of business of such Person to the extent such letters of credit and
bonds are not drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the 30th Business Day following receipt by
such Person of a demand for reimbursement following payment on the letter
of credit or bond);
(e) the amount of all obligations of such Person with respect to the
Repayment of any Disqualified Stock or, with respect to any Subsidiary of
such Person, that is not a Guarantor, any Preferred Stock (measured, in
each case, at the greatest of its voluntary or involuntary maximum fixed
repurchase price or liquidation value on the date of determination but
excluding, in each case, any accrued dividends for any current period not
yet payable);
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(f) all obligations of other Persons of the type referred to in
clauses (a) through (e) above, and all accrued dividends of other Persons
currently payable, the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including by means of any Guarantee;
(g) all obligations of the type referred to in clauses (a) through
(f) above of other Persons, the payment of which is secured by any Lien on
any Property of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser
of the Fair Market Value of such Property or the amount of the obligation
so secured; and
(h) to the extent not otherwise included in this definition, Hedging
Obligations of such Person and all obligations under Interest Rate
Agreements.
The amount of Debt of any Person at any date shall be the amount
necessary to extinguish in full as of such date the outstanding balance at such
date of all unconditional obligations as described above including, without
limitation, all interest that has been capitalized, and without giving effect to
any call premiums in respect thereof. The amount of Debt represented by a
Hedging Obligation shall be equal to:
(1) zero if such Hedging Obligation has been Incurred pursuant to
Section 4.09(c)(5), (6) or (7) or
(2) the marked-to-market value of such Hedging Obligation to the
counterparty thereof if not Incurred pursuant to such clauses.
For purposes of this definition, the maximum fixed repurchase price
of any Preferred Stock that does not have a fixed redemption, repayment or
repurchase price will be calculated in accordance with the terms of such
Preferred Stock as if such Preferred Stock were purchased on any date on which
Debt will be required to be determined pursuant to this Indenture at its Fair
Market Value if such price is based upon, or measured by, the fair market value
of such Preferred Stock determined in good faith by the Board of Directors of
Xxxxx; provided, however, that if such Preferred Stock is not then permitted in
accordance with the terms of such Preferred Stock to be redeemed, repaid or
repurchased, the redemption, repayment or repurchase price shall be the book
value of such Preferred Stock as reflected in the most recent financial
statements of such Person.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Deposi-
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tory by the Company, which Person must be a clearing agency registered under the
Exchange Act.
"Disqualified Stock" means, with respect to any Person, 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 either case at the option of the
holder thereof) or upon the happening of an event:
(a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the option of
the holder thereof, in whole or in part, or
(c) is convertible or exchangeable at the option of the holder
thereof for Debt or Disqualified Stock,
on or prior to, in the case of clause (a), (b) or (c), the 91st day after the
Stated Maturity of the Notes; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders the
right to require the issuer thereof to repurchase or redeem such Capital Stock
upon the occurrence of a Change of Control occurring prior to the 91st day after
the Stated Maturity of the Notes shall not constitute Disqualified Stock if the
change of control provisions applicable to such Disqualified Stock are no more
favorable to the holders of such Disqualified Stock than the provisions of this
Indenture with respect to a Change of Control and such Disqualified Stock
specifically provides that the issuer thereof will not repurchase or redeem any
such Disqualified Stock pursuant to such provisions prior to the Company's
completing a Change of Control Offer.
"Escrow Agent" has the meaning set forth in the Escrow and Pledge
Agreement.
"Escrow and Pledge Agreement" means the escrow and pledge agreement
dated the Issue Date among the Securities Intermediary, the Trustee and the
Company relating to the Notes.
"Escrowed Property" means the funds to be held in escrow pursuant to
the Escrow and Pledge Agreement.
"Euroclear" has the meaning set forth in Section 2.16.
"Events of Default" has the meaning set forth in Section 6.01.
"Excess Proceeds" has the meaning set forth in Section 4.12.
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"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Excluded Holder" has the meaning set forth in Section 4.20.
"Existing Xxxxx Credit Agreement" means the $400,000,000 Senior
Secured Credit Agreement, dated as of August 2, 2002, among Xxxxx North America,
Inc., the Guarantors named therein, the several lenders from time to time party
thereto and Citicorp USA, Inc., as administrative agent for the Lenders,
including any amendments prior to the Release.
"Existing Xxxxxxx Credit Agreement" means the $500,000,000 Credit
Agreement, dated as of October 31, 1997, among Xxxxxxx Computer Services, Inc.,
Bank of America National Trust and Savings Association, as Administrative Agent,
and the other financial institutions party thereto, including any amendments
prior to the Release.
"Fair Market Value" means, with respect to any Property, the price
that could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value shall be
determined, except as otherwise provided,
(a) if such Property has a Fair Market Value equal to or less than
$10 million, by any Officer of the Company, or
(b) if such Property has a Fair Market Value in excess of $10
million, by a majority of the Board of Directors of Xxxxx and evidenced by
a Board Resolution.
"First Currency" has the meaning set forth in Section 12.14 hereof.
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any period, the ratio of the Pro Forma Consolidated EBITDA of such Person for
such period to the Fixed Charges of such Person for such period. For purposes of
calculating the Company's Fixed Charge Coverage Ratio, the calculation shall
reflect the Fixed Charge Coverage Ratio of the Company, the Guarantors and the
Restricted Subsidiaries collectively (without duplication).
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of:
(a) the Pro Forma Consolidated Interest Expense of such Person and
its Restricted Subsidiaries for such period whether paid or accrued,
determined in accordance with GAAP;
(b) all commissions, discounts and other fees and charges incurred
in respect of letters of credit or bankers' acceptance financings,
determined in accordance
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with GAAP, and net payments or receipts (if any) pursuant to Hedging Obligations
to the extent such Hedging Obligations related to Debt that is not itself a
Hedging Obligation;
(c) any interest expense on Debt of any 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);
(d) amortization or write-off of Debt discount in connection with
any Debt of such Person and any Restricted Subsidiary on a consolidated
basis in accordance with GAAP other than amortization of deferred
financing costs incurred on or prior to the Release; and
(e) the product of (a) all dividend payments (other than payments to
the referent Person or any of its Restricted Subsidiaries and any
dividends payable in the form of Capital Stock) on any series of Preferred
Stock or Disqualified Stock of such Person and its Restricted
Subsidiaries, times (b) (x) 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 income tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP
or (y) if the dividends are deductible by such Person for income tax
purposes based on law in effect at the time of payment one.
"GAAP" means Canadian generally accepted accounting principles as in
effect from time to time.
"Global Notes" has the meaning set forth in Section 2.16.
"Government Obligations" means any security issued or guaranteed as
to principal or interest by the United States, or by a person controlled or
supervised by and acting as an instrumentality of the government of the United
States pursuant to authority granted by the Congress of the United States or any
certificate of deposit for any of the foregoing.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt of such other Person (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), or
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(b) entered into for the purpose of assuring in any other manner the
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include:
(1) endorsements for collection or deposit in the ordinary course of
business, or
(2) a contractual commitment by one Person to invest in another
Person for so long as such Investment is reasonably expected to constitute
a Permitted Investment.
The term "Guarantee" used as a verb has a corresponding meaning. The
term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Guarantors" means, collectively, the Subsidiary Guarantor, the
Sister Guarantors and the Parents.
"Hedging Obligations" of any Person means any obligation of such
Person pursuant to any Interest Rate Agreement, Currency Exchange Protection
Agreement, Commodity Price Protection Agreement or any other similar agreement
or arrangement.
"Holder" or "noteholder" means the Person in whose name a Note is
registered on the Note register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by merger, conversion, exchange or otherwise),
extend, assume, Guarantee or become liable in respect of such Debt or other
obligation or (if earlier) the recording, as required pursuant to GAAP or
otherwise, of any such Debt or obligation on the balance sheet of such Person
(and "Incurrence" and "Incurred" shall have meanings correlative to the
foregoing); provided, however, that a change in GAAP or the application thereof
that results in an obligation of such Person that exists at such time, and is
not theretofore classified as Debt, becoming Debt shall not be deemed an
Incurrence of such Debt; provided further, however, that amortization of debt
discount, accrual or capitalization of dividends and interest, including the
accrual of deferred accrued interest, the accretion of principal and the payment
of interest or dividends in the form of additional securities shall not, in any
such case, be deemed to be the Incurrence of Debt; provided that in the case of
Debt or Preferred Stock sold at a discount or for which interest or dividends is
capitalized or accrued or accreted, the amount of such Debt or outstanding
Preferred Stock Incurred shall at all times be the then current accreted value
or shall include all capitalized interest.
-18-
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of national standing or any third-party appraiser or
recognized expert with experience in appraising the terms and conditions of the
type of transaction or series of related transactions for which an opinion is
required, provided that such firm or appraiser is not an Affiliate of the
Company.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., Deutsche Bank
Securities, Xxxxxx Xxxxxxx & Co. Incorporated, Banc One Capital Markets, Inc,
BNP Paribas Securities Corp., Fleet Securities, Inc., Scotia Capital (USA) Inc.,
CIBC World Markets Corp. and Credit Lyonnais Securities (USA) Inc.
"interest" means, with respect to the Notes, interest and Additional
Interest.
"Interest Payment Date" means January 15 and July 15 of each year.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate option agreement, interest rate future agreement or other similar
agreement designed to protect against fluctuations in interest rates.
"Investment" by any Person means any loan, advance or other
extension of credit (other than advances or extensions of credit and receivables
in the ordinary course of business that are recorded as accounts receivable on
the balance sheet of such Person or acquired as part of the assets acquired in
connection with an acquisition of assets otherwise permitted by this Indenture
and also excluding advances to officers and employees in the ordinary course of
business) or capital contribution (by means of transfers of cash or other
Property to others or payments for Property or services for the account or use
of others, or otherwise) to, or Incurrence of a Guarantee of any obligation of,
or purchase or acquisition of Capital Stock, bonds, notes, debentures or other
securities or evidence of Debt issued by, any other Person. For purposes of
Sections 4.10 and 4.15 and the definition of "Restricted Payment," "Investment"
shall include the Fair Market Value of the Investment of the Company, a
Guarantor and any Restricted Subsidiary in any Subsidiary of the Company at the
time that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the Company, such Guarantor or such Restricted Subsidiary, as the
case may be, shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary (proportionate to its equity interest in such
Subsidiary) of an amount (if positive) equal to:
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(a) its "Investment" in such Subsidiary at the time of such
redesignation, less
(b) the portion (proportionate to its equity interest in such
Subsidiary) of the Fair Market Value of its Investment in such Subsidiary
at the time of such redesignation.
In determining the amount of any Investment made by transfer of any
Property other than cash, such Property shall be valued at its Fair Market Value
at the time of such Investment.
"Investment Grade Rating" means a rating equal to or higher than
Baaa3 (or the equivalent) by Moody's and BBB- (or the equivalent) by S&P.
"Issue Date" means the date on which the Notes are initially issued
(exclusive of any Additional Notes).
"judgment currency" has the meaning set forth in Section 12.13.
"Legal Defeasance" has the meaning set forth in Section 9.01.
"Legal Holiday" has the meaning set forth in Section 12.07.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement on or with respect to such Property
(including any Capital Lease Obligation, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing or any sale and leaseback transaction).
"Maturity Date" when used with respect to any Note, means the date
on which the principal amount of such Note becomes due and payable as therein or
herein provided.
"Money Market Funds" means shares of an investment company
registered under the Investment Company Act of 1940, as amended, that holds
itself out as a money market fund, seeks to maintain a net asset value of $1.00
per share and has the highest investment rating by S&P and Moody's and, in
either case, any successor rating agency thereto.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
rating agency.
"Xxxxx" means Xxxxx Corporation Limited, a Canadian corporation.
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"Xxxxx Holdings" means Xxxxx Holdings U.S.A. Inc., a Delaware
corporation and wholly owned subsidiary of Xxxxx.
"Xxxxx XX" means Xxxxx North America, Inc., a Delaware corporation
and wholly owned subsidiary of Xxxxx Holdings.
"Net Available Cash" from any Asset Sale means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only, in each case, as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of Debt
or other obligations relating to the Property that is the subject of such Asset
Sale or received in any other non-cash form), in each case net of:
(a) all legal, title and recording tax expenses, commissions and
other fees and expenses Incurred, and all U.S. Federal, state, provincial,
foreign and local taxes required to be accrued as a liability under GAAP,
as a consequence of such Asset Sale,
(b) all payments made on any Debt that is secured by any Property
subject to such Asset Sale in accordance with the terms of any Lien upon
or other security agreement of any kind with respect to such Property, or
which must by its terms, or in order to obtain a necessary consent to such
Asset Sale, or by applicable law, be repaid out of the proceeds from such
Asset Sale,
(c) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Sale,
(d) brokerage commissions and other reasonable fees and expenses
(including any severance, pension or shutdown cost and fees and expenses
of counsel, accountants and investment bankers) related to such Asset
Sale, and
(e) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the Property disposed in such Asset Sale and retained by the Company, a
Guarantor or any Restricted Subsidiary after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities relating to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale and any
deductions relating to escrowed amounts.
"Non-Recourse Debt" means Debt
(a) as to which none of the Company, a Guarantor or any Restricted
Subsidiary provides any guarantee or credit support of any kind (including
any undert-
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aking, guarantee, indemnity, agreement or instrument that would constitute
Debt) or is directly or indirectly liable (as a guarantor or otherwise) or
as to which there is any recourse to the assets of the Company, a
Guarantor or any Restricted Subsidiary; and
(b) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both)
any holder of any other Debt of the Company, a Guarantor or any Restricted
Subsidiary to declare a default under such other Debt or cause the payment
thereof to be accelerated or payable prior to its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the 7-7/8% Notes Due 2011 issued by the Company that
are issued pursuant to this Indenture.
"Notes Guarantee" means, individually, a Subsidiary Guarantee or a
Parent Guarantee and, collectively, the Subsidiary Guarantees and the Parent
Guarantee.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt, including any guarantees thereof, and in
all cases whether direct or indirect, absolute or contingent, now outstanding or
hereafter created, assumed or incurred and including, without limitation,
interest accruing subsequent to the filing of a petition in bankruptcy or the
commencement of any insolvency, reorganization or similar proceedings at the
rate provided in the relevant documentation, whether or not an allowed claim,
and any obligation to redeem or defease any of the foregoing.
"Offer Amount" has the meaning set forth in Section 4.12(g).
"Offer Period" has the meaning set forth in Section 4.12(g).
"Offering Memorandum" means the offering memorandum dated March 11,
2003 relating to the offering of Notes issued on the Issue Date.
"Officer" means the Chief Executive Officer, the President, the
Chief Financial Officer or any Vice President, the Treasurer or the Secretary of
the specified Person.
"Officers' Certificate" means a certificate signed by an Officer of
the specified Person, and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company, a Guarantor or the Trustee.
"Parents" means Xxxxx and Xxxxx Holdings.
"Parent Guarantee" has the meaning set forth in Section 10.01.
"Paying Agent" has the meaning set forth in Section 2.04.
"Payment Default" means, with respect to any Debt, a failure to pay
principal of such Debt at its Stated Maturity after giving effect to any
applicable grace period provided in the instrument(s) governing such Debt.
"Permitted Debt" has the meaning set forth in Section 4.09.
"Permitted Investment" means any Investment by the Company, a
Guarantor or a Restricted Subsidiary in:
(a) the Company, a Guarantor, any Restricted Subsidiary or any
Person that will, upon the making of such Investment, become a Restricted
Subsidiary, or who is merged, consolidated or amalgamated with or into, or
transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Company, a Guarantor or a Restricted Subsidiary;
provided that the primary business of such Restricted Subsidiary is a
Related Business, including, without limitation, the Acquisition and the
transactions contemplated thereby,
(b) cash or Temporary Cash Investments,
(c) receivables owing to the Company, a Guarantor or a Restricted
Subsidiary, if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or such Guarantor or Restricted Subsidiary
deems reasonable under the circumstances,
(d) payroll, travel, commission and similar advances to cover
matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the
ordinary course of business,
(e) loans and advances to employees, directors and consultants made
in the ordinary course of business consistent with past practices of the
Company or such Guarantor or Restricted Subsidiary, as the case may be;
provided that such loans and advances do not exceed $10 million at any one
time outstanding,
-23-
(f) stock, obligations or other securities received in settlement or
good faith compromise of debts created in the ordinary course of business
and owing to the Company, a Guarantor or a Restricted Subsidiary or in
satisfaction of judgments or pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of a debtor,
(g) any Person to the extent such Investment represents the non-cash
consideration received in connection with an asset sale, including an
Asset Sale consummated in compliance with Section 4.12,
(h) the Notes and, if issued, any Additional Notes,
(i) Interest Rate Agreements, Currency Exchange Protection
Agreements, Hedging Obligations and Commodity Price Protection Agreement,
in each case, permitted under Section 4.09,
(j) existence on the Issue Date and, with respect to Xxxxxxx and its
Subsidiaries, Investments in an aggregate amount not exceeding $10 million
in existence at the Release and, in each case, any permitted Refinancing
thereof,
(k) a Securitization Entity or any Investment by a Securitization
Entity in any other Person, in each case in connection with a Qualified
Securitization Transaction, which Investment consists of the transfer of
Receivables and Related Assets,
(l) prepaid expenses, negotiable instruments held for deposit, or
collection and lease, utility and worker's compensation, performance and
other similar deposits provided to third parties in the ordinary course of
business,
(m) other Investments that do not exceed $75 million outstanding at
any one time in the aggregate (with the amount of each Investment being
measured at the time made and without giving effect to subsequent changes
in value),
(n) any Person where the consideration provided by the Company or a
Guarantor consists solely of Capital Stock of Xxxxx (other than
Disqualified Stock),
(o) joint ventures engaged in a Related Business that do not exceed
$150 million outstanding at any one time in the aggregate,
(p) any Person where such Investment was acquired by the Company, a
Guarantor or any Restricted Subsidiary (1) in exchange for any other
Investment or accounts receivable held by the Company, a Guarantor or any
such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitali-
-24-
zation of the issuer of such other Investment or accounts receivable or
(2) as a result of a foreclosure by the Company, a Guarantor or any
Restricted Subsidiary with respect to any secured Investment or such other
transfer of title with respect to any secured Investment in default,
(q) negotiable instruments held for deposit or collection in the
ordinary course of business,
(r) guarantees by the Company, a Guarantor or a Restricted
Subsidiary of Debt otherwise permitted to be Incurred by the Company, a
Guarantor or a Restricted Subsidiary under this Indenture and the creation
of Liens on the assets of the Company, a Guarantor or a Restricted
Subsidiary in compliance with Section 4.11, or
(s) any Investment made as part of the consideration received for
the sale of the Capital Stock or Properties of Peak Technologies Inc. and
its subsidiaries, substantially as it existed as of the Issue Date.
"Permitted Liens" means:
(a) Liens securing the Notes and the Guarantees;
(b) (1) Liens securing Debt Incurred under Section 4.09(c)(1) and
(2) Liens securing (A) Debt in an amount not to exceed the product of 2.75
times the Company's Pro Forma Consolidated EBITDA for the most recently
ended four fiscal quarters for which financial statements have been filed
with the Commission pursuant to Section 4.18 immediately preceding the
date on which such Debt is Incurred minus (B) the aggregate amount
outstanding of Debt permitted to be Incurred under Section 4.09(c)(1);
(c) Liens securing Debt of a Restricted Subsidiary permitted to be
Incurred under Section 4.09(c)(14) and (c)(17);
(d) Liens securing Debt permitted to be Incurred under Section
4.09(c)(3); provided that any such Lien may not extend to any Property of
the Company, a Guarantor or any Restricted Subsidiary, other than the
Property acquired, constructed or leased with the proceeds of such Debt
and any improvements or accessions to such Property;
(e) Liens for taxes, assessments or governmental charges or levies
on the Property of the Company, a Guarantor or any Restricted Subsidiary
if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings; provided that any reserve or
-25-
other appropriate provision that shall be required in conformity with GAAP
shall have been made therefor;
(f) Liens imposed by law or regulation, such as statutory Liens or
landlords', carriers', warehousemen's and mechanics' Liens, Liens in favor
of customs or revenue authorities and other similar Liens on the Property
of the Company, a Guarantor or any Restricted Subsidiary arising in the
ordinary course of business and securing payment of obligations that are
not more than 60 days past due or are being contested in good faith and by
appropriate proceedings or Liens arising solely by virtue of any statutory
or common law provisions relating to customs, duties, bankers' liens,
rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depositary institution;
(g) Liens on the Property of the Company, a Guarantor or any
Restricted Subsidiary Incurred in the ordinary course of business to
secure performance of obligations with respect to statutory or regulatory
requirements, performance bids, trade contracts, letters of credit,
bankers' acceptances, performance or return-of-money bonds, surety bonds
or other obligations of a like nature and Incurred in a customary manner,
in each case which are not Incurred in connection with the borrowing of
money, the obtaining of advances or the payment of the deferred purchase
price of Property and which do not in the aggregate impair in any material
respect the use of Property in the operation of the business of the
Company and the Restricted Subsidiaries taken as a whole;
(h) Liens on Property at the time the Company, a Guarantor or any
Restricted Subsidiary acquired such Property, including any acquisition by
means of a merger or consolidation with or into the Company, a Guarantor
or any Restricted Subsidiary; provided, however, that any such Lien may
not extend to any other Property of the Company, a Guarantor or any
Restricted Subsidiary; provided further, however, that such Liens shall
not have been Incurred in anticipation of or in connection with the
transaction or series of related transactions pursuant to which such
Property was acquired by the Company, a Guarantor or any Restricted
Subsidiary;
(i) Liens on the Property of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that any such Lien may
not extend to any other Property of the Company, a Guarantor or any other
Restricted Subsidiary that is not a direct or, prior to such time,
indirect Subsidiary of such Person; provided further, however, that any
such Lien was not Incurred in anticipation of or in connection with the
transaction or series of related transactions pursuant to which such
Person became a Restricted Subsidiary;
-26-
(j) pledges or deposits by the Company, a Guarantor or any
Restricted Subsidiary under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Debt) or leases to which the Company, a Guarantor or any Restricted
Subsidiary is a party, or deposits to secure public or statutory
obligations of the Company, a Guarantor or any Restricted Subsidiary, or
deposits for the payment of rent, in each case Incurred in the ordinary
course of business;
(k) utility easements, building restrictions and such other
encumbrances or charges against real Property as are of a nature generally
existing with respect to properties of a similar character;
(l) any provision for the retention of title to any Property by the
vendor or transferor of such Property which Property is acquired by the
Company, a Guarantor or a Restricted Subsidiary in a transaction entered
into in the ordinary course of business of the Company, a Guarantor or a
Restricted Subsidiary and for which kind of transaction it is normal
market practice for such retention of title provision to be included;
(m) Liens arising by means of any judgment, decree or order of any
court, to the extent not otherwise resulting in a Default, and any Liens
that are required to protect or enforce rights in any administrative,
arbitration or other court proceedings in the ordinary course of business;
(n) Liens securing Debt permitted to be Incurred with respect to any
Hedging Obligations pursuant to Section 4.09 or any collateral for such
Debt to which the Hedging Obligations relate;
(o) Liens on and pledges of the Capital Stock of any Unrestricted
Subsidiary to secure Debt of that Unrestricted Subsidiary;
(p) (1) mortgages, Liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on property over which the
Company, a Guarantor or any Restricted Subsidiary has easement rights or
on any real property leased by the Company, a Guarantor or any Restricted
Subsidiary or similar agreements relating thereto and (2) any condemnation
or eminent domain proceedings or compulsory purchase order affecting real
property;
(q) Liens existing on the Issue Date and Liens on assets of Xxxxxxx
that existed on the Issue Date, but, from and after the Release, not
including Liens securing the Existing More Credit Agreement or the
Existing Xxxxxxx Credit Agreement;
-27-
(r) Liens in favor of the Company, a Guarantor or any Restricted
Subsidiary;
(s) Liens on assets of a Securitization Entity Incurred in
connection with a Qualified Securitization Transaction;
(t) Liens on the Property of the Company, a Guarantor or any
Restricted Subsidiary to secure any Refinancing of Debt, in whole or in
part, secured by any Lien described in the foregoing clause (c), (h), (i)
or (q); provided that any such Lien is limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or dividends
or distributions in respect thereof) that secured the Debt being
Refinanced; and
(u) other Liens to secure Debt, so long as the aggregate principal
amount of Debt secured thereby does not exceed 10% of the Combined
Consolidated Net Tangible Assets of the Company, as determined by
reference to the most recent balance sheet included in the financial
statements filed with the Commission or the Trustee pursuant to Section
4.18.
"Permitted Refinancing Debt" means any Debt that refinances any Debt
incurred under Section 4.09(b), 4.09(c)(2) or 4.09(c)(14), including any
successive Refinancings, so long as:
(a) such Debt is in an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) not in excess of
the sum of:
(1) the aggregate principal amount (or if Incurred with
original issue discount, the aggregate accreted value) and any
accrued but unpaid interest then outstanding of the Debt being
Refinanced, and
(2) an amount necessary to pay any fees and expenses,
including premiums, tender and defeasance costs, related to such
Refinancing,
(b) in the case of the Refinancing of term Debt, the Average Life of
such Debt is equal to or greater than the Average Life of the Debt being
Refinanced,
(c) in the case of the Refinancing of term Debt, the final Stated
Maturity of the Debt being Incurred is no earlier than the final Stated
Maturity of the Debt being Refinanced, and
(d) in the case of the Refinancing of Debt of the Company or a
Guarantor:
-28-
(1) the new Debt shall not be senior in right of payment of
the Debt being Refinanced; and
(2) if the Debt being Refinanced constitutes Subordinated
Obligations of the Company or a Guarantor, the new Debt shall be
subordinated to the Notes or the relevant Guarantee, as applicable,
at least to the same extent as the Subordinated Obligations;
provided, however, that Permitted Refinancing Debt shall not include:
(x) Debt of a Restricted Subsidiary (other than a Subsidiary
Guarantor) that Refinances Debt of the Company or a Guarantor, or
(y) Debt of the Company, a Guarantor or a Restricted Subsidiary that
Refinances Debt of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including any
limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"Prepayment Offer" has the meaning set forth in Section 4.12(e).
"Private Placement Legend" means the legend initially set forth on
the Rule 144A Notes and Other Notes that are Restricted Notes in the form set
forth in Exhibit B.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms hereof, a calculation performed in accordance
with the terms of this Indenture and (to the extent not conflicting with such
terms) Article 11 of Regulation S-X promulgated under the Securities Act (as in
effect on the Issue Date).
"Pro Forma Consolidated EBITDA" means, for any Person for any
period, the Consolidated EBITDA of such Person on a pro forma basis; provided
that if, since the beginning of the relevant period,
(a) (x) any Person was designated as an Unrestricted Subsidiary or
redesignated as or otherwise became a Restricted Subsidiary, such event
shall be deemed to have occurred on the first day of the applicable
reference period, or (y) any Person that subsequently became a Restricted
Subsidiary or was merged with or into the Company
-29-
or any Restricted Subsidiary since the beginning of the period shall have
made any Investment in any Person or made any acquisition, disposition,
merger or consolidation that would have required adjustment pursuant to
this definition, then in each case, Pro Forma Consolidated EBITDA shall be
calculated giving pro forma effect thereto for such period as if such
designation, Investment, acquisition, disposition, merger or consolidation
had occurred at the beginning of the applicable reference period; and
(b) in the event that pro forma effect is being given to any
Repayment of Debt, Pro Forma Consolidated EBITDA for such period shall be
calculated as if such Person or such Restricted Subsidiary had not earned
any interest income actually earned during such period in respect of the
funds used to Repay such Debt.
"Pro Forma Consolidated Interest Expense" means, with respect to any
period, Consolidated Interest Expense adjusted (without duplication) to give pro
forma effect to any Incurrence of Debt that remains outstanding at the end of
the period or any Repayment of Debt since the beginning of the relevant period
as if such Incurrence or Repayment had occurred on the first day of such period.
If any Debt bears a floating or fluctuating rate of interest and is
being given pro forma effect, the interest expense on such Debt shall be
calculated as if the base interest rate in effect for such floating or
fluctuating rate of interest on the date of determination were in effect for the
whole period (taking into account any Interest Rate Agreement applicable to such
Debt if such Interest Rate Agreement had when entered into a term of at least 12
months or, if shorter, the term of the Debt). In the event the Capital Stock of
any Restricted Subsidiary is sold during the period, the Debt of such Restricted
Subsidiary shall be deemed to have been Repaid during such period to the extent
the Company and the continuing Guarantors and Restricted Subsidiaries are no
longer liable for such Debt after such sale.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Purchase Date" has the meaning set forth in Section 4.12(f).
"Purchase Money Debt" means Debt:
(a) consisting of the deferred purchase price of Property,
conditional sale obligations, obligations under any title retention
agreement, other purchase money obligations and obligations in respect of
industrial revenue bonds, in each case where the
-30-
maturity of such Debt does not exceed the anticipated useful life of the
Property being financed, and
(b) Incurred to finance the acquisition, construction or lease by
the Company or a Restricted Subsidiary of such Property, including
additions and improvements thereto;
provided, however, that such Debt is Incurred within 180 days after the
acquisition, completion of the construction, addition or improvement or lease of
such Property by the Company, such Guarantor or such Restricted Subsidiary.
"Qualified Equity Offering" means any public or private offering for
cash of Capital Stock (other than Disqualified Stock) of Xxxxx or Xxxxx Holdings
other than (i) public offerings of Capital Stock registered on Form S-8 or (ii)
other issuances upon the exercise of options of employees of Xxxxx or any of its
Subsidiaries.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
"Qualified Securitization Transaction" means any transaction or
series of related transactions that may be entered into by the Company, a
Guarantor or any Restricted Subsidiary pursuant to which the Company, a
Guarantor or any Restricted Subsidiary may sell, convey or otherwise transfer to
(a) a Securitization Entity (in the case of a transfer by the Company, a
Guarantor or any Restricted Subsidiary) and (b) any other Person (in the case of
a transfer by a Securitization Entity), or may grant a security interest in,
Receivables and Related Assets.
"Receivables and Related Assets" means any account receivable
(whether now existing or arising thereafter) of the Company, a Guarantor or any
Restricted Subsidiary and any assets related thereto, including all collateral
securing such accounts receivable, all contracts and contract rights and all
Guarantees or other obligations in respect of such accounts receivable, proceeds
of such accounts receivable and other assets which are customarily transferred
or in respect of which security interests are customarily granted in connection
with asset securitization transactions involving accounts receivable.
"Redemption Date" when used with respect to any Note to be redeemed
pursuant to paragraph 5 of the Notes means the date fixed for such redemption
pursuant to the terms of the Notes.
"Refinance" means, in respect of any Debt, to refinance, extend,
renew, refund, repay, prepay, repurchase, redeem, defease or retire, or to issue
other Debt in exchange or replacement for, such Debt. "Refinanced" and
"Refinancing" shall have correlative meanings.
-31-
"Registrar" has the meaning set forth in Section 2.04.
"Registration Rights Agreement" means the registration rights
agreement, dated the Issue Date, among the Company, the Guarantors and the
Initial Purchasers and the Initial Purchasers.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" has the meaning set forth in Section
2.16.
"Regulation S Notes" has the meaning set forth in Section 2.02.
"Related Business" means any business that is the same as or
related, ancillary or complementary to the business of a Parent, a Guarantor or
any Restricted Subsidiary on the Issue Date or any reasonable extension,
development or expansion of such business, including the businesses acquired
pursuant to the Acquisition.
"Release" means the release of the Escrowed Property pursuant to the
Escrow and Pledge Agreement.
"Release Date Supplemental Indenture" means a supplemental indenture
executed and delivered by a Guarantor on the date of the Release.
"Repay" means, in respect of any Debt, to repay, prepay, repurchase,
redeem, legally defease or otherwise retire such Debt with the effect that the
Debt is no longer an obligation of the Person that had Incurred such Debt or any
of its Restricted Subsidiaries. "Repayment" and "Repaid" shall have correlative
meanings. For the purposes of Section 4.12 and the definition of "Fixed Charge
Coverage Ratio," Debt shall be considered to have been Repaid only to the extent
the related loan commitment, if any, shall have been permanently reduced in
connection therewith.
"Required Filing Dates" has the meaning set forth in Section 4.17.
"Required Rating Agencies" means both Xxxxx'x and S&P.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer assigned by the Trustee to administer corporate trust
matters and any other officer of the Trustee to administer corporate trust
matters and to whom any corporate trust matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Restricted Global Note" has the meaning set forth in Section 2.16.
-32-
"Restricted Note" has the same meaning as "Restricted Security" set
forth in Rule 144(a)(3) promulgated under the Securities Act; provided that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Note.
"Restricted Payment" means:
(a) any dividend or distribution (whether made in cash, securities
or other Property) declared or paid by the Company, a Guarantor or any
Restricted Subsidiary on or with respect to any shares of its Capital
Stock, except for (i) any dividend or distribution that is made solely to
the Company, a Guarantor or a Restricted Subsidiary (and, if such
Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, to the
other shareholders of such Restricted Subsidiary on a pro rata basis or on
a basis that results in the receipt by the Company, a Guarantor or a
Restricted Subsidiary of dividends or distributions of greater value than
it would receive on a pro rata basis) or (ii) any dividend or distribution
payable solely in shares of Capital Stock (other than Disqualified Stock)
of the Company, a Guarantor or a Restricted Subsidiary or in options,
warrants or other rights to acquire shares of Capital Stock (other than
Disqualified Stock) of the Company, a Guarantor or a Restricted
Subsidiary;
(b) the purchase, repurchase, redemption, acquisition or retirement
for value of any Capital Stock of the Company, a Guarantor or a Restricted
Subsidiary (other than from the Company, a Guarantor or a Restricted
Subsidiary or any entity that becomes a Restricted Subsidiary as a result
of such transactions) or securities exchangeable for or convertible into
any such Capital Stock, including the exercise of any option to exchange
any Capital Stock (other than for or into Capital Stock of the Company, a
Guarantor or a Restricted Subsidiary that is not Disqualified Stock);
provided that, notwithstanding anything in this definition to the
contrary, the purchase, repurchase, redemption, acquisition or retirement
for value of any Disqualified Stock of the Company, a Guarantor or a
Restricted Subsidiary at its scheduled mandatory redemption date shall
only constitute a Restricted Payment to the extent (and only to the
extent) that the issuance of such Disqualified Stock increased the amount
available for Restricted Payments pursuant to Section 4.10(b)(3)(iii);
(c) the purchase, repurchase, redemption, acquisition or retirement
for value, prior to the date for any scheduled maturity, sinking fund or
amortization or other installment payment, of any Subordinated Obligation
(other than the purchase, repurchase or other acquisition of any
Subordinated Obligation purchased in anticipation of satisfying a
scheduled maturity, sinking fund or amortization or other installment
obligation, in each case due within one year of the date of acquisition);
-33-
(d) any Investment (other than Permitted Investments and Guarantees
by Restricted Subsidiaries of Debt Incurred pursuant to Section 4.09) in
any Person; or
(e) the issuance, sale or other disposition of Capital Stock of any
Restricted Subsidiary to a Person (other than the Company, a Guarantor or
another Restricted Subsidiary) if the result thereof is that such
Restricted Subsidiary shall cease to be a Subsidiary of the Company or a
Guarantor, in which event the amount of such "Restricted Payment" shall be
the Fair Market Value of the remaining interest, if any, in such former
Restricted Subsidiary held by the Company, the Guarantors and the
Restricted Subsidiaries.
"Restricted Period" has the meaning set forth in Section 2.07.
"Restricted Note" has the same meaning as "Restricted Security" set
forth in Rule 144(a)(3) promulgated under the Securities Act; provided that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Note.
"Restricted Subsidiary" means each Subsidiary of Xxxxx as of the
Issue Date and thereafter unless such Subsidiary is designated an Unrestricted
Subsidiary in accordance with the provisions of this Indenture.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Notes" has the meaning set forth in Section 2.02.
"S&P" means Standard & Poor's Rating Services, a Division of The
XxXxxx-Xxxx Companies, Inc., or any successor rating agency.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Account Control Agreement" means the securities account
control agreement dated the Issue Date among the Company, the Securities
Intermediary and the Trustee.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Securities Intermediary" has the meaning assigned to such term in
the Escrow and Pledge Agreement.
-34-
"Securitization Entity" means a Restricted Subsidiary that is a
wholly owned subsidiary (or another Person in which the Company, a Guarantor or
a Restricted Subsidiary makes an Investment and to which the Company, a
Guarantor or a Restricted Subsidiary transfers Receivables and Related Assets)
that engages in no activities other than in connection with the financing of
accounts receivable and that is designated by the Board of Directors of the
Company and the Board of Directors of Xxxxx (as provided below) as a
Securitization Entity and:
(a) no portion of the Debt or any other obligations (contingent or
otherwise) of which:
(1) is guaranteed by the Company, a Guarantor or any
Restricted Subsidiary (excluding Guarantees (other than the
principal of, and interest on, Debt) pursuant to Standard
Securitization Undertakings);
(2) is recourse to or obligates the Company, a Guarantor or
any Restricted Subsidiary (other than such Securitization Entity) in
any way other than pursuant to Standard Securitization Undertakings;
or
(3) subjects any Property or asset of the Company, a Guarantor
or any Restricted Subsidiary (other than such Securitization
Entity), directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings;
(b) with which none of the Company, a Guarantor or any Restricted
Subsidiary (other than such Securitization Entity) has any material
contract, agreement, arrangement or understanding other than on terms no
less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates of
the Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable of such entity; and
(c) to which neither the Company nor any Restricted Subsidiary
(other than such Securitization Entity) has any obligation to maintain or
preserve such entity's financial condition or cause such entity to achieve
certain levels of operating results.
Any designation of a Subsidiary as a Securitization Entity shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Company and the Board of Directors
of Xxxxx giving effect to the designation and an Officers' Certificate of each
of them certifying that the designation complied with the preceding conditions
and was permitted by this Indenture.
-35-
"Security Documents" means the Escrow and Pledge Agreements and the
Securities Account Control Agreement.
"Senior Credit Facility Debt" means all obligations under or with
respect to Debt Incurred under (1) the Credit Agreement, (2) Section 4.09(c)(1)
and (3) any Interest Rate Agreement or Currency Exchange Protection Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of Xxxxx within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Sister Guarantors" means Xxxxx XX and Xxxxxxx as of the date of the
Release (after giving effect to the consummation of the Acquisition).
"special interest" means the additional interest, if any, to be paid
on the Notes as described in clause 5(d) of the Notes, and, for greater
certainty, the term "interest" includes special interest, if any, with respect
to the Notes.
"Special Mandatory Redemption" has the meaning set forth in Section
3.07.
"Special Mandatory Redemption Date" has the meaning set forth in
Section 3.07.
"Special Mandatory Redemption Price" means a price equal to
$400,174,970 plus accrued and unpaid interest on the Notes from the Issue Date,
or if interest has been paid on the Notes, the last date to which interest has
been paid preceding the Special Mandatory Redemption Date.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company, a Guarantor
or any Restricted Subsidiary that are reasonably customary in an accounts
receivable securitization transaction, including, without limitation, servicing
of the obligations thereunder.
"Stated Maturity" means (a) with respect to any debt security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the Company unless such
contingency has occurred) and (b) with respect to any scheduled installment of
principal of or interest on any debt security, the date specified in such debt
security as the fixed date on which such installment is due and payable.
-36-
"Subordinated Obligation" means any Debt of the Company or any
Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Notes or such entity's Notes
Guarantee pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
company (including any limited liability company), association, partnership,
joint venture or other business entity of which a majority of the total voting
power of the Voting Stock is at the time owned or controlled, directly or
indirectly, by:
(a) such Person,
(b) such Person and one or more Subsidiaries of such Person, or
(c) one or more Subsidiaries of such Person.
"Subsidiary Guarantee" means a Guarantee on the terms set forth in
Article Ten by a Subsidiary Guarantor of the Company's obligations with respect
to the Notes.
"Subsidiary Guarantor" means (i) each Subsidiary of Xxxxx organized
under the laws of any state of the United States or Canada or any province or
territory thereof as of the Release (after giving effect to the consummation of
the Acquisition), (ii) each other Subsidiary of Xxxxx that is a guarantor of the
Credit Agreement as of the Release (after giving effect to the consummation of
the Acquisition) and (iii) each Restricted Subsidiary that executes a Subsidiary
Guarantee in accordance with Section 4.16, in each case until such time as such
Subsidiary Guarantor shall be released in accordance with the terms of this
Indenture.
"Surviving Person" has the meaning set forth in Section 5.01.
"Tax" means any tax, duty, assessment or governmental charge of
whatever nature (or interest on, or penalties or other additions to, any of the
foregoing) imposed or levied by or on behalf of, or within, Canada or any
province or territory of Canada or any political subdivision or taxing authority
of Canada or any province or territory of Canada.
"Temporary Cash Investments" means:
(a) any Government Obligation, maturing not more than one year after
the date of acquisition, issued by the United States or Canada or an
instrumentality or agency thereof, and constituting a general obligation
of the United States or Canada;
(b) any certificate of deposit, maturing not more than one year
after the date of acquisition, issued by, or time deposit of, a commercial
banking institution that is a member of the U.S. Federal Reserve System
and that has combined capital and surplus
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and undivided profits of not less than $200 million, whose debt has a
rating, at the time as of which any investment therein is made, of "P-1"
(or higher) according to Xxxxx'x or "A-1" (or higher) according to S&P
(or, in the case of foreign Subsidiaries of Xxxxx, any local office of any
commercial bank organized under the laws of the relevant jurisdiction or
any political subdivision thereof which has a combined capital surplus and
undivided profits in excess of $200 million (or the foreign currency
equivalent thereof));
(c) commercial paper, maturing not more than one year after the date
of acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of the Company) organized and existing under the laws of the
United States or Canada, any state, province or territory thereof or the
District of Columbia with a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Xxxxx'x or "A-1" (or
higher) according to S&P;
(d) any money market deposit accounts issued or offered by a
commercial bank organized in the United States or Canada having capital
and surplus and undivided profits in excess of $200 million; provided that
the short-term debt of such commercial bank has a rating, at the time of
Investment, of "P-1" (or higher) according to Xxxxx'x or "A-1" (or higher)
according to S&P;
(e) repurchase obligations and reverse repurchase obligations with a
term of not more than 30 days for underlying securities of the types
described in clause (a) or (b) entered into with a bank meeting the
qualifications described in clause (b) above;
(f) investments in securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
province, commonwealth or territory of the United States or Canada, or by
any political subdivision or taxing authority thereof, and rated at least
"A-1" by S&P or "P-1" by Xxxxx'x;
(g) interests in funds investing substantially all their assets in
securities of the types described in clauses (a) through (f); and
(h) interests in mutual funds with a rating of AAA- or higher that
invest all of their assets in short-term securities, instruments and
obligations which carry a minimum rating of "A-2" by S&P or "P-2" by
Xxxxx'x and which are managed by a bank meeting the qualifications in
clause (b) above; and
(i) other short-term investments utilized by Restricted Subsidiaries
of Xxxxx organized outside the United States and Canada made in accordance
with nor-
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mal and customary investment practices for cash management of such
Restricted Subsidiaries of Xxxxx.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.03).
"Transactions" means the Release, the consummation of the
Acquisition and the closing of the Credit Agreement (and the concurrent release
of any funds held in escrow under the Credit Facility Escrow Arrangements).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of Xxxxx that at the time of determination will
be designated as an Unrestricted Subsidiary as permitted or required
pursuant to Section 4.15 and is not thereafter redesignated as a
Restricted Subsidiary as permitted pursuant thereto; and
(b) any Subsidiary of an Unrestricted Subsidiary.
"Voting Stock" of any Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means, at any time, a Subsidiary all the
Voting Stock of which (except directors' qualifying shares and shares required
by applicable law to be held by a Person other than the Company or a Subsidiary)
is at such time owned, directly or indirectly, by the Company, Xxxxx XX, Xxxxxxx
or a Parent, as the case may be, and their other wholly owned Subsidiaries.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder.
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"indenture to be qualified" means this Indenture.
"obligor on this indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the plural
include the singular;
(4) words used herein implying any gender shall apply to both
genders;
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subsection;
(6) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP;
(7) "$," "U.S. Dollars" and "United States Dollars" each refer to
United States dollars, or such other money of the United States that at
the time of payment is legal tender for payment of public and private
debts; and
(8) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the payment
of Additional Interest to the extent that, in such context, Additional
Interest are, were or would be payable in respect thereof.
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes.
The Trustee shall initially authenticate Notes for original issue on
the Issue Date in an aggregate principal amount of $403,000,000 upon a written
order of the Company in the form of an Officers' Certificate of the Company
(other than as provided in Section 2.08). The Trustee shall authenticate
additional Notes ("Additional Notes") thereafter in unlimited aggregate
principal amount (so long as permitted by the terms of this Indenture,
including, without limitation, Section 4.09) for original issue upon a written
order of the Company in the form of an Officers' Certificate in aggregate
principal amount as specified in such order (other than as provided in Section
2.08). Each such written order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated.
SECTION 2.02. Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A, which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Company is subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("Rule 144A Notes") shall bear the legend and include the form of assignment set
forth in Exhibit B, Notes offered and sold in offshore transactions in reliance
on Regulation S ("Regulation S Notes") shall bear the legend and include the
form of assignment set forth in Exhibit C. Each Note shall be dated the date of
its authentication.
The terms and provisions contained in the Notes shall constitute,
and are expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and agree to be bound thereby.
The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar.
SECTION 2.03. Execution and Authentication.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, Chief Executive Officer, Chief Financial Officer, President or any
Vice President. The signature of any of these officers on the Notes may be
manual or facsimile.
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If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Notes shall be issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange (the "Registrar"), and an
office or agency where Notes may be presented for payment (the "Paying Agent")
and an office or agency where notices and demands to or upon the Company, if
any, in respect of the Notes and this Indenture may be served. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may have one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent.
The Company shall enter into an appropriate agency agreement, which
shall incorporate the provisions of the TIA, with any Agent that is not a party
to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Agent for service of notices and demands in connection with the Notes
and this Indenture and the Company may change the Paying Agent without prior
notice to the Holders. The Company or any of its Subsidiaries may act as Paying
Agent.
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SECTION 2.05. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of or premium or interest on the Notes (whether such money has been paid to it
by the Company or any other obligor on the Notes or the Guarantors), and the
Company and the Paying Agent shall notify the Trustee of any default by the
Company (or any other obligor on the Notes) in making any such payment. Money
held in trust by the Paying Agent need not be segregated except as required by
law and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder; provided that if the Company or an Affiliate
thereof acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
the Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
Event of Default specified in Section 6.01(1) or (2), upon written request to
the Paying Agent, require such Paying Agent to pay forthwith all money so held
by it to the Trustee and to account for any funds disbursed. Upon making such
payment, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least five 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; provided that, as long as the Trustee is the
Registrar, no such list need be furnished.
SECTION 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar with a request from the Holder of such Notes to register a transfer or
to exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested. Every
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and execute and the Trustee
shall authenticate new Notes (and the Guarantors shall execute the guarantee
thereon) evidencing such transfer or exchange at the Registrar's request. No
service charge shall be made to the Holder for any registration of transfer or
exchange. The Company may require from the Holder payment of a sum sufficient to
cover any transfer taxes or other governmental charge that may be imposed in
relation to a transfer
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or exchange, but this provision shall not apply to any exchange pursuant to
Section 2.11, 3.06, 4.08, 4.12 or 8.05 (in which events the Company shall be
responsible for the payment of such taxes). The Registrar shall not be required
to exchange or register a transfer of any Note for a period of 15 days
immediately preceding the redemption of Notes, except the unredeemed portion of
any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry.
Except as expressly provided herein, neither the Trustee nor the
Registrar shall have any duty to monitor the Company's compliance with or have
any responsibility with respect to the Company's compliance with any Federal or
state securities laws.
SECTION 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee,
or if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note (and the Guarantors shall execute the guarantee thereon) if the
Holder of such Note furnishes to the Company and the Trustee evidence reasonably
acceptable to them of the ownership and the destruction, loss or theft of such
Note and if the requirements of Section 8-405 of the New York Uniform Commercial
Code as in effect on the date of this Indenture are met. If required by the
Trustee or the Company, an indemnity bond shall be posted, sufficient in the
judgment of all to protect the Company, the Guarantors, the Trustee or any
Paying Agent from any loss that any of them may suffer if such Note is replaced.
The Company may charge such Holder for the Company's reasonable out-of-pocket
expenses in replacing such Note and the Trustee may charge the Company for the
Trustee's expenses (including, without limitation, attorneys' fees and
disbursements) in replacing such Note. Every replacement Note shall constitute a
contractual obligation of the Company.
SECTION 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Company or one of its Affiliates holds the Note.
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If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date, money sufficient to pay all accrued interest and principal with respect to
the Notes payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any declaration of acceleration or notice of default
or direction, waiver or consent or any amendment, modification or other change
to this Indenture, Notes owned by the Company or any other Affiliate of the
Company shall be disregarded as though they were not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has actually received an Officers' Certificate stating that such
Notes are so owned shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee established to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, a Guarantor, any other obligor on
the Notes or any of their respective Affiliates.
SECTION 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall deliver such canceled
Notes to the Company. The Company may not reissue or resell, or issue
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new Notes to replace, Notes that the Company has redeemed or paid, or that have
been delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
If the Company defaults on a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the Persons who are Holders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner satisfactory to
the Trustee. At least 10 days before such special record date, the Company shall
mail to each Holder a notice that states the special record date, the payment
date and the amount of defaulted interest, and interest payable on defaulted
interest, if any, to be paid. The Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements (if
applicable) of any securities exchange on which the Notes may be listed and,
upon such notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant to this
sentence, such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.14. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if
so, such CUSIP number shall be included in notices of redemption or exchange as
a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15. Deposit of Moneys.
Prior to 11:00 a.m., New York City time, on each Interest Payment
Date and Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depository or its nominee, as
the case may be, as the sole registered owner and the sole Holder of the Global
Notes represented thereby. The principal and interest on Physical Notes shall be
payable, either in person or by mail, at the office of the Paying Agent.
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SECTION 2.16. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes shall be represented by one or more Notes in
registered, global form without interest coupons (collectively, the "Restricted
Global Note"). Regulation S Notes initially shall be represented by one or more
Notes in registered, global form without interest coupons (collectively, the
"Regulation S Global Note," and, together with the Restricted Global Note and
any other global notes representing Notes, the "Global Notes"). The Global Notes
shall bear legends as set forth in Exhibit D. The Global Notes initially shall
(i) be registered in the name of the Depository or the nominee of such
Depository, in each case for credit to an account of an Agent Member (or, in the
case of the Regulation S Global Notes, of Euroclear System ("Euroclear") and
Clearstream Banking Luxembourg ("Clearstream")), (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B with respect to Restricted Global Notes and Exhibit C with respect to
Regulation S Global Notes.
Members of, or direct or indirect participants in, the Depository
("Agent Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Notes, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization (which may be in electronic form) furnished by the
Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, a Global Note shall
be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as depository for such Global
Note or (y) has ceased to be a clearing agency registered under the Exchange
Act, and, with respect to (x) or (y), the Company thereupon fails to appoint a
successor depository within 90 days of such notice or cessation, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Notes in exchange for any or all of the Notes
represented by the Global Notes or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Notes. In all cases, Physical
Notes delivered in exchange for any Global Note or beneficial interests therein
shall be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depository (in accordance with its customary
procedures).
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall upon receipt of a written order from the
Company authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety
to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in writing in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount of Physical
Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a) and (c) of Section 2.17,
bear the Private Placement Legend or, in the case of the Regulation S Global
Note, the legend set forth in Exhibit C, in each case, unless the Company
determine otherwise in compliance with applicable law.
(f) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(g) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.17. Special Transfer Provisions.
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration or any proposed registration of transfer of a Note
constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on such Holder's Note stating, or to a transferee who has advised the
Company and the Registrar in writing,
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that it is purchasing the Note for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company
as it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar
of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Note in an amount equal to the principal amount of the Physical Notes to
be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(b) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note whether or not such Note bears the Private
Placement Legend, if (x) the requested transfer is after the second
anniversary of the Issue Date (provided, however, that neither the Company
nor any Affiliate of the Company has held any beneficial interest in such
Note, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date) or (y)(1) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB (excluding Non-U.S.
Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit G hereto and any legal
opinions and certifications required thereby or (2) in the case of a
transfer to a Non-U.S. Person, the proposed transferor has delivered to
the Registrar a certificate substantially in the form of Exhibit E hereto;
and
(ii) if the proposed transferor is a Participant holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by Section 2.17(b)(i) and (y)
written instructions given in accordance with the Depositary's and the
Registrar's procedures; whereupon (a) the Registrar shall reflect on its
books and records the date and (if the transfer does not involve a
transfer of outstanding Physical Notes) a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the
beneficial interest in the Global Note to be
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transferred and (b) the Company shall execute and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and
amount; and
(iii) in the case of a transfer to a Non-U.S. Person, if the
proposed transferee is a Participant, and the Notes to be transferred
consist of Physical Notes which after transfer are to be evidenced by an
interest in a Regulation S Global Note, upon receipt by the Registrar of
written instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of such
Regulation S Global Note in an amount equal to the principal amount of
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (ii) such Note has been sold pursuant to an effective registration
statement under the Securities Act and the Registrar has received an Officers'
Certificate from the Company to such effect or (iii) the requested transfer is
after the second anniversary of the Issue Date (provided, however, that neither
the Company nor an Affiliate of the Company has held any beneficial interest in
such Note or portion thereof at any time since the Issue Date).
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
(e) Certain Transfers in Connection with and After the Exchange
Offer under the Registration Rights Agreement. Notwithstanding any other
provision of this Indenture:
(i) no Exchange Securities may be exchanged by the Holder thereof
for a Note issued on the Issue Date;
(ii) accrued and unpaid interest on the Notes issued on the Issue
Date being exchanged in the Exchange Offer shall be due and payable on the
next Interest Payment Date for the Exchange Securities following the
Exchange Offer and shall be paid
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to the Holder on the relevant record date of the Exchange Securities
issued in respect of the Note issued on the Issue Date being exchanged;
and
(iii) interest on the Note issued on the Issue Date being exchanged
in the Exchange Offer shall cease to accrue on the date of completion of
the Exchange Offer and interest on the Exchange Securities to be issued in
the Exchange Offer shall accrue from the date of the completion of the
Exchange Offer.
The Registrar shall retain for a period of two years copies of all
letters, notices and other written communications received pursuant to Section
2.16 or this Section 2.17. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable notice to the Registrar.
SECTION 2.18. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months and actual days elapsed. For the purposes of the
Interest Act (Canada), the yearly rate of interest which is equivalent to the
rate payable hereunder is the rate multiplied by the actual number of days in
the year and divided by 360.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, at least 30 days prior to the Redemption Date (unless a shorter notice
shall be agreed to in writing by the Trustee) but not more than 60 days before
the Redemption Date, the Company shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the redemption
price, and deliver to the Trustee, no later than two Business Days prior to the
redemption date, an Officers' Certificate stating that such redemption will
comply with the conditions contained in paragraph 5 of the Notes. Notice given
to the Trustee pursuant to this Section 3.01 may be conditioned upon the
occurrence of a Change of Control.
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.
The Trustee shall select the Notes to be redeemed, if the Notes are
then listed on a national securities exchange, in accordance with the rules of
such exchange or, if the Notes are not so listed, either on a pro rata basis or
by lot, or such other method as the Trustee
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in its sole discretion shall deem fair and appropriate; provided that, in the
case of a redemption pursuant to paragraph 5(b) of the Notes, the Trustee shall
select the Notes only on a pro rata basis or on as nearly a pro rata basis as is
practicable (subject to procedures of the Depository). The Trustee shall
promptly notify the Company of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed. The Trustee may select for redemption portions of the principal
of the Notes that have denominations larger than $1,000. Notes and portions
thereof the Trustee selects shall be redeemed in amounts of $1,000 or whole
multiples of $1,000. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. In the event
the Company is requested to make a Change of Control Offer or Offer to Purchase
and the amounts available for any such offer is not evenly divisible by $1,000,
the Trustee shall promptly refund to the Company any remaining funds, which in
no event shall exceed $1,000.
SECTION 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption
Date, the Company shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.04.
The notice shall identify the Notes to be redeemed (including the
CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the appropriate calculation of the redemption price;
(3) if fewer than all outstanding Notes are to be redeemed, the
portion of the principal amount of such Note to be redeemed and that,
after the Redemption Date and upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date;
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(7) which subsection of paragraph 5 of the Notes is the provision of
the Notes pursuant to which the redemption is occurring; and
(8) the aggregate principal amount of Notes that are being redeemed.
At the Company's written request made at least five Business Days
prior to the date on which notice is to be given, the Trustee shall give the
notice of redemption in the Company's name and at the Company's sole expense.
SECTION 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at
the redemption price, including any premium, plus interest accrued to the
Redemption Date; provided that if the Redemption Date is after a regular record
date and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant record
date; and provided, further, that if a Redemption Date is a Legal Holiday,
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business Day.
Such notice, if mailed in the manner provided in Section 3.03, shall be
conclusively presumed to have been given whether or not the Holder receives such
notice.
SECTION 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each Redemption
Date, the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of, including premium, if
any, and accrued interest on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of, including premium, if any, and accrued interest on Notes
called for redemption shall have been made available in accordance with the
immediately preceding paragraph, the Notes called for redemption will cease to
accrue interest and the only right of the Holders of such Notes will be to
receive payment of the redemption price of and, subject to the first proviso in
Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date.
If any Note surrendered for redemption shall not be so paid, interest will be
paid, from the Redemption Date until such redemption payment is made, on the
unpaid principal of the Note and any interest not paid on such unpaid principal,
in each case at the rate and in the manner provided in the Notes.
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SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder thereof a new Note
equal in principal amount to the unredeemed portion of the original Note in the
name of the Holder upon cancellation of the original Note surrendered, except
that if a Global Note is so surrendered, the Company shall execute and the
Trustee shall authenticate and deliver to the Depository, a new Global Note in
denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Note so surrendered.
SECTION 3.07. Special Mandatory Redemption; Notices to Trustee and Securities
Intermediary.
If the Release has not occurred on or before 5:00 p.m., New York
City time, on the Deadline, the Company will, on a Business Day not more than
ten Business Days following the Deadline (the "Special Mandatory Redemption
Date"), notify the Trustee thereof and deliver to the Trustee an Officers'
Certificate stating that such redemption will comply with the conditions
contained in paragraph 6 of the Notes (the "Special Mandatory Redemption") and
setting forth the Special Mandatory Redemption Price applicable to such Special
Mandatory Redemption. Simultaneously with the giving of such notice by the
Company to the Trustee, the Company shall notify the Securities Intermediary
thereof pursuant to Section 3(b) of the Escrow and Pledge Agreement.
SECTION 3.08. Notice of Special Mandatory Redemption to Holders.
Notice of the Special Mandatory Redemption will be promptly mailed
by first class mail by the Company to each Holder of Notes at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.04.
The notice shall state that all the Notes will be redeemed
(including the CUSIP numbers thereof) and shall state:
(1) the Special Mandatory Redemption Date;
(2) the Special Mandatory Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Notes must be surrendered to the Paying Agent to collect
the redemption price; and
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(5) that unless the Company defaults in making the redemption
payment, interest on the Notes ceases to accrue on and after the Special
Mandatory Redemption Date.
SECTION 3.09. Effect of Notice of Special Mandatory Redemption.
Once the notice of redemption described in Section 3.08 is mailed,
the Notes will become due and payable on the Special Mandatory Redemption Date
at the Special Mandatory Redemption Price. Upon surrender to the Paying Agent,
the Notes shall be paid at the Special Mandatory Redemption Price.
SECTION 3.10. Deposit of Special Mandatory Redemption Price.
On or prior to 10:00 A.M., New York City time, on the Special
Mandatory Redemption Date, the Company shall direct the Securities Intermediary,
pursuant to Section 3(b) of the Escrow and Pledge Agreement, to deposit with the
Paying Agent the applicable Special Mandatory Redemption Price.
On and after the Special Mandatory Redemption Date, if money
sufficient to pay the applicable Special Mandatory Redemption Price shall have
been made available in accordance with the immediately preceding paragraph, the
Notes will cease to accrue interest and the only right of the Holders of the
Notes will be to receive payment of the Special Mandatory Redemption Price. If
any Note surrendered for redemption shall not be so paid, interest will be paid,
from the Special Mandatory Redemption Date until such redemption payment is
made, on the unpaid principal of the Note and any interest not paid on such
unpaid principal, in each case at the rate and in the manner provided in the
Notes.
SECTION 3.11. Other Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes, other than a Special Mandatory
Redemption.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes and this Indenture. An
installment of principal or
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interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay such installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee or Registrar) where Notes
may be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee and the Company and each Guarantor hereby appoint the Trustee as their
agent to receive all such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.04.
SECTION 4.03. Legal Existence.
Subject to Article Five, the Company and the Guarantors shall do or
cause to be done all things necessary to preserve and keep in full force and
effect (i) their legal existence, and the corporate, partnership or other
existence of each Restricted Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Restricted Subsidiary and the material rights (charter and statutory), and
franchises of the Company, the Guarantors and the Restricted Subsidiaries;
provided that the Company and the Guarantors shall not be required to preserve
any such right, franchise, or the corporate, partnership or other existence of
any of its Restricted Subsidiaries if the Company
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and the Guarantors, as the case may be, in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, the Guarantors and their Restricted Subsidiaries taken as a whole.
SECTION 4.04. Maintenance of Properties; Insurance; Compliance with Law.
(a) The Company and the Guarantors shall, and shall cause each of
their Restricted Subsidiaries to, at all times cause all material properties
used or useful in the conduct of their respective businesses to be maintained
and kept in good condition, repair and working order (reasonable wear and tear
excepted) and supplied with all necessary equipment, and shall cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereto; provided, however, that nothing in this Section 4.04(a) shall prevent
the Company and the Guarantors or any of their Restricted Subsidiaries from
discontinuing the operation and maintenance of any of such material properties
if such discontinuance is, in the reasonable judgment of the Company and Xxxxx,
desirable in the conduct of the business of the Company, the Guarantors and
their Subsidiaries taken as a whole and not adverse in any material respect to
the Holders.
(b) The Company and the Guarantors shall, and shall cause each of
their Restricted Subsidiaries to, keep at all times all of their material
properties which are of an insurable nature insured against such loss or damage
with insurers believed by the Company and Xxxxx to be responsible to the extent
that Property of a similar character is usually so insured by corporations
similarly situated and owning like Properties in accordance with good business
practice.
(c) The Company and the Guarantors shall, and shall cause each of
their Restricted Subsidiaries to comply with all statutes, laws, ordinances or
government rules and regulations to which they are subject, non-compliance with
which would materially adversely affect the business, financial condition or
results of operations of the Company, the Guarantors and their Restricted
Subsidiaries taken as a whole.
SECTION 4.05. Waiver of Stay, Extension or Usury Laws.
The Company and each of the Guarantors covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) each of the Company and the Guarantors hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but
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will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.06. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, commencing with the Company's fiscal
year ending December 31, 2003, an Officers' Certificate, one of the signers of
which shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not to the best
knowledge of the signers thereof the Company, any Restricted Subsidiary or any
Guarantor is in default in the performance and observance of any of the terms,
provisions and conditions of Section 5.01 or Sections 4.01 to 4.20, inclusive,
and if the Company shall be in default, specifying all such defaults, the nature
and status thereof of which they may have knowledge and what action the Company
and the Guarantors are taking or propose to take with respect thereto. Such
determination shall be made without regard to notice requirements or periods of
grace.
(b) The Company shall deliver to the Trustee, as soon as possible
and in any event no later than 10 Business Days after the Company becomes aware
of the occurrence of a Default or an Event of Default or an event which, with
notice or the lapse of time or both, would constitute a Default or Event of
Default, an Officers' Certificate setting forth the details of such Default or
Event of Default, and the action which the Company is taking or proposes to take
with respect to such Default or Event of Default.
(c) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement by the Company's independent
public accountants stating whether, in connection with their audit of Xxxxx'x
financial statements, any event which would constitute an Event of Default as
defined herein insofar as they relate to accounting matters has come to their
attention and, if such an Event of Default has come to their attention,
specifying the nature thereof.
SECTION 4.07. Payment of Taxes and Other Claims.
The Company and the Guarantors shall, and shall cause each of its
Restricted Subsidiaries to, pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or Property of the Company or any of
its Subsidiaries, and (2) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the Property of the
Company or any of its Subsidiaries; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
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SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at a purchase price
equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, to the purchase date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date) (the "Change of Control Purchase Price"); provided,
however, that notwithstanding the occurrence of a Change of Control, the Company
shall not be obligated to purchase the Notes pursuant to this Section 4.08 in
the event that it has mailed the notice to exercise its right to redeem all the
Notes under Section 3.01 at any time prior to the requirement to consummate the
Change of Control and redeems the Notes in accordance with such notice.
(b) Within 30 days following any Change of Control, or, at the
Company's option, prior to the consummation of such Change of Control but after
it is publicly announced, the Company shall send, by first-class mail, with a
copy to the Trustee, to each Holder of Notes, at such Holder's address appearing
in the Note register, a notice stating:
(1) that a Change of Control has occurred or will occur and a Change
of Control Offer is being made pursuant to Section 4.08 and that all Notes
timely tendered and not withdrawn will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date (the
"Change of Control Payment Date"), which shall be, subject to any contrary
requirements of applicable law, a Business Day and a point in time
occurring after the consummation of the Change of Control and not later
than 60 days from the date such notice is mailed;
(3) the circumstances and relevant facts regarding the Change of
Control;
(4) if the notice is mailed prior to a Change of Control, that the
Change of Control Offer is conditioned on the Change of Control occurring
and Notes will not be accepted for payment unless and until the Change of
Control is consummated; and
(5) the procedures that Holders of Notes must follow in order to
tender their Notes (or portions thereof) for payment, and the procedures
that Holders of Notes must follow in order to withdraw an election to
tender Notes (or portions thereof) for payment.
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Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Company or
its agent at the address specified in the notice at least three Business Days
prior to the Change of Control Payment Date. Holders shall be entitled to
withdraw their election if the Trustee or the Company receives, not later than
one Business Day prior to the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note that was delivered for purchase by the Holder and a
statement that such Holder is withdrawing its election to have such Note
purchased.
(c) On or prior to the Change of Control Payment Date, the Company
shall irrevocably deposit with the Trustee or with the Paying Agent (or, if the
Company or any of its Subsidiaries is acting as the Paying Agent, segregate and
hold in trust) in cash an amount equal to the Change of Control Purchase Price
payable to the Holders entitled thereto, to be held for payment in accordance
with the provisions of this Section 4.08(c). On the Change of Control Payment
Date, the Company or its agent shall deliver to the Trustee the Notes or
portions thereof that have been properly tendered to and are to be accepted by
the Company for payment.
(d) The Trustee or the Paying Agent shall, on the Change of Control
Payment Date, mail or deliver payment to each tendering Holder of the Change of
Control Purchase Price. In the event that the aggregate Change of Control
Purchase Price is less than the amount delivered by the Company to the Trustee
or the Paying Agent, the Trustee or the Paying Agent, as the case may be, shall
deliver the excess to the Company immediately after the Change of Control
Payment Date.
(e) Notwithstanding the foregoing, the Company shall not be required
to make a Change of Control Offer upon a Change of Control if a third party
makes an offer to purchase (an "Alternate Offer"), in the manner, at the times
and otherwise in compliance with the requirements set forth in this Section 4.08
applicable to a Change of Control made by the Company, any and all Notes
properly tendered and has purchased all Notes properly tendered and not
withdrawn in accordance with the terms of such Alternate Offer.
(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other applicable
securities laws or regulations in connection with the repurchase of Notes
pursuant to a Change of Control Offer, including any applicable securities laws
of the United States. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.08, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.08 by virtue of
such compliance with these securities laws or regulations.
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SECTION 4.09. Limitation on Debt.
(a) Notwithstanding anything contained in Section 4.09(b), prior to
the Release, the Company will not Incur any Debt (including Acquired Debt),
except for the Notes.
(b) From and after the Release, the Company and the Guarantors shall
not, and shall not permit any Restricted Subsidiary to, Incur any Debt;
provided, however, that the Company or any Guarantor may Incur Debt and the
Company or any Guarantor may Incur Acquired Debt if the Company's Fixed Charge
Coverage Ratio for the most recently ended four fiscal quarters for which
financial statements have been filed with the Commission pursuant to Section
4.18 immediately preceding the date on which such Debt is Incurred would have
been at least 2.00 to 1.00, determined on a pro forma basis (including pro forma
application of the net proceeds therefrom for such four-quarter period), as if
the additional Debt had been Incurred at the beginning of such four-quarter
period, with any letters of credit and bankers' acceptances being deemed to have
an aggregate principal amount of Debt equal to the maximum amount available
thereunder and with any revolving credit facility being deemed to be utilized
only to the extent of amounts outstanding thereunder.
(c) Notwithstanding the immediately preceding paragraph, any or all
of the following Debt (collectively, "Permitted Debt") may be Incurred:
(1) Debt of the Company or any Guarantor under a Credit Facility;
provided that the aggregate principal amount of all such Debt under Credit
Facilities shall not exceed $950 million at any time outstanding less (i)
the amount of any permanent mandatory repayments of principal of term
loans made under a Credit Facility which was Incurred under this clause
(1) and (ii) the amount of any permanent mandatory repayments of principal
of revolving loans made under a Credit Facility which was Incurred under
this clause (1) which are accompanied by a corresponding permanent
commitment reduction, in each case which are made with Net Available Cash
from Asset Sales as required as a result of a sale of assets;
(2) the Notes (excluding any Additional Notes) and related
Guarantees and any Notes and related Guarantees issued in exchange for the
Notes and related Guarantees pursuant to the Registration Rights
Agreement;
(3) Debt of the Company or any Guarantor in respect of Capital Lease
Obligations and Purchase Money Debt; provided that:
(A) the aggregate principal amount of such Debt secured
thereby does not exceed the Fair Market Value (on the date of the
Incurrence thereof) of the Property acquired, constructed or leased,
and
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(B) the aggregate principal amount of all Debt Incurred and
then outstanding pursuant to this clause (3) (together with all
Permitted Refinancing Debt Incurred and then outstanding in respect
of Debt previously Incurred pursuant to this clause (3)) does not
exceed $100 million;
(4) Debt (1) of the Company owing to and held by Xxxxx or any
Restricted Subsidiary, (2) of a Restricted Subsidiary owing to and held by
Xxxxx, the Company or any other Restricted Subsidiary and (3) of Xxxxx
owing to and held by any Restricted Subsidiary; provided, however, that
any subsequent issue or transfer of Capital Stock or other event that
results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Debt (except to Xxxxx,
the Company or a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Debt by the issuer thereof not permitted
by this clause (4);
(5) Debt under Interest Rate Agreements entered into by the Company,
a Guarantor or a Restricted Subsidiary in the ordinary course of their
financial management and not for speculative purposes;
(6) Debt under Currency Exchange Protection Agreements entered into
by the Company, a Guarantor or a Restricted Subsidiary in the ordinary
course of their financial management and not for speculative purposes;
(7) Debt under Commodity Price Protection Agreements entered into by
the Company, a Guarantor or a Restricted Subsidiary in the ordinary course
of their financial management and not for speculative purposes;
(8) Debt of the Company, a Guarantor or any Restricted Subsidiary in
connection with (A) one or more letters of credit issued by any of them in
the ordinary course of business with respect to trade payables relating to
the purchase of materials by such Persons and (B) other letters of credit,
surety, performance, appeal or similar bonds, banker's acceptances,
completion guarantees or similar instruments issued in the ordinary course
of business of the Company, a Guarantor or a Restricted Subsidiary,
including letters of credit or similar instruments pursuant to
self-insurance and workers' compensation obligations; provided that upon
the drawing of such letters of credit or other instrument, such
obligations are reimbursed within 30 days following such drawing;
provided, further, that with respect to clauses (A) and (B) above, such
Debt is not in connection with the borrowing of money or the obtaining of
advances or credit;
(9) Debt of the Company, a Guarantor or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a
check, draft or similar
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instrument inadvertently drawn against insufficient funds; provided that
such Debt remains outstanding for five Business Days or less;
(10) Debt of the Company, a Guarantor or any Restricted Subsidiary
arising from agreements for indemnification and purchase price adjustment
obligations and earn-outs or other similar obligations, in each case,
Incurred or assumed in connection with the acquisition or disposition of
any assets, including Capital Stock and including by way of merger or
consolidation; provided that the maximum assumable liability in respect of
all such obligations shall at no time exceed the gross proceeds actually
received by the Company, a Guarantor or any Restricted Subsidiary,
including the Fair Market Value of non-cash proceeds;
(11) Debt Incurred by a Securitization Entity in connection with a
Qualified Securitization Transaction; provided, however, that in the event
such Securitization Entity ceases to qualify as a Securitization Entity,
such Debt will be deemed, in each case, to be Incurred at such time;
(12) Debt of the Company or a Guarantor consisting of a Guarantee of
or a Lien securing, Debt of the Company or a Guarantor; provided that such
Debt constitutes Debt that is permitted to be Incurred pursuant to this
Section 4.09, but subject to compliance with the other provisions
described under Article Four;
(13) Debt in respect of netting services, overdraft protection and
otherwise in connection with deposit accounts; provided that such Debt
remains outstanding for five Business Days or less;
(14) Debt of the Company, a Guarantor or any Restricted Subsidiary
(other than Xxxxxxx or its Subsidiaries) that was outstanding on the Issue
Date not otherwise described in clauses (1) through (13) above; provided
that from and after the Release, this clause (14) shall not include Debt
under the Existing Xxxxx Credit Agreement;
(15) Guarantees in the ordinary course of business of the
obligations of suppliers, customers, franchisers and licensees;
(16) Permitted Refinancing Debt; and
(17) Debt of the Company, a Guarantor or any Restricted Subsidiary
or the issuance of Disqualified Stock in a principal amount or liquidation
value, as applicable, outstanding at any one time not to exceed $200
million in the aggregate for all such Debt and Disqualified Stock (which
Debt may, but need not, be Incurred, in whole or in part, under a Credit
Facility).
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For the purposes of determining compliance with this Section 4.09,
in the event that an item of Debt meets the criteria of more than one of the
types of Debt permitted by this covenant or is entitled to be Incurred pursuant
to Section 4.09(b), the Company in its sole discretion shall be permitted to
classify on the date of its Incurrence, or later reclassify, all or a portion of
such item of Debt in any manner that complies with this Section 4.09; provided
that all outstanding Debt under the Credit Agreement at the time of the Release
shall be deemed to have been Incurred pursuant to clause (c)(i) of this Section
4.09.
Debt permitted by this Section 4.09 need not be permitted solely by
reference to one provision permitting such Debt but may be permitted in part by
one such provision and in part by one or more other provisions of this Section
4.09 permitting such Debt.
For the purposes of determining any particular amount of Debt under
this Section 4.09, (a) Guarantees, Liens, obligations with respect to letters of
credit and other obligations supporting Debt otherwise included in the
determination of a particular amount will not be included and (b) any Liens
granted to the Holders of the Notes that are permitted in Section 4.11 will not
be treated as Debt.
For purposes of determining compliance with any dollar-denominated
restriction on the Incurrence of Debt, with respect to any Debt which is
denominated in a foreign currency, the dollar-equivalent principal amount of
such Debt Incurred pursuant thereto shall be calculated based on the relevant
currency exchange rate in effect on the date that such Debt was incurred, and
any such foreign-denominated Debt may be refinanced or replaced or subsequently
refinanced or replaced in an amount equal to the dollar-equivalent principal
amount of such Debt on the date of such refinancing or replacement whether or
not such amount is greater or less than the dollar-equivalent principal amount
of the Debt on the date of initial Incurrence.
If obligations in respect of letters of credit are Incurred pursuant
to the Credit Facility and are being treated as Incurred pursuant to clause (1)
of the third paragraph of this Section 4.09 and the letters of credit relate to
other Debt, then such other Debt shall be deemed not Incurred.
Notwithstanding any other provision of this Section 4.09, neither
the Company nor any Guarantor shall Incur any Debt that is expressly
subordinated to any other Debt of the Company or such Guarantor unless such Debt
is expressly subordinated in right of payment to the Notes or the Notes
Guarantee of such Guarantor to the same or a greater extent than such Debt is
subordinated to such other Debt.
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SECTION 4.10. Limitation on Restricted Payments.
(a) Notwithstanding anything contained in the two succeeding
paragraphs, prior to the Release, the Company shall not make any Restricted
Payments or any Permitted Investments, except to the extent necessary to
consummate the Release or the Special Mandatory Redemption and the transactions
contemplated by the Escrow and Pledge Agreement (including any Investments
deemed to exist by virtue of the Escrow and Pledge Agreement or the payment of
fees and expenses related to the offering of the Notes).
(b) From and after the Release, neither the Company nor any
Guarantor shall make, and none of them shall permit any Restricted Subsidiary to
make, any Restricted Payment if at the time of, and after giving effect to, such
proposed Restricted Payment,
(1) a Default or Event of Default shall have occurred and be
continuing,
(2) the Company could not Incur at least $1.00 of additional Debt
pursuant to Section 4.09(b) or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made since the Issue Date (the amount of
any Restricted Payment, if made other than in cash, to be based upon Fair
Market Value) would exceed an amount equal to the sum of:
(i) 50% of the aggregate amount of Combined Consolidated Net
Income accrued on a cumulative basis during the period (treated as
one accounting period) from the first day of the fiscal quarter in
which the Issue Date occurs to the end of the most recent fiscal
quarter ended prior to the date of such proposed Restricted Payment
for which financial statements are available pursuant to Section
4.18 (or if the aggregate amount of Combined Consolidated Net Income
for such period shall be a deficit, minus 100% of such deficit),
plus
(ii) 100% of Capital Stock Sale Proceeds and cash capital
contributions after the Release by a Person who is not the Company,
a Guarantor or a Restricted Subsidiary of the Company or a
Guarantor, plus (without duplication)
(iii) the sum of:
(A) the aggregate net cash proceeds received by the
Company, a Guarantor or a Restricted Subsidiary from the
issuance or sale after the Release of convertible or
exchangeable Debt or Disqualified
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Stock that has been converted into or exchanged for its
Capital Stock (other than Disqualified Stock), and
(B) the aggregate amount by which Debt (other than
Subordinated Obligations) of the Company, the Guarantors or
the Restricted Subsidiaries is reduced on its consolidated
balance sheet on or after the Issue Date upon the conversion
or exchange of any Debt issued or sold on or prior to the
Issue Date that is convertible or exchangeable for Capital
Stock (other than Disqualified Stock), together with, in the
cases of both clauses (A) and (B), the aggregate net cash
proceeds received by the Company, a Guarantor or a Restricted
Subsidiary at the time of such conversion or exchange, but
excluding, in the case of clause (A) or (B): (x) any such Debt
issued or sold to the Company, a Guarantor or a Restricted
Subsidiary or an employee stock ownership plan or trust
established by the Company, a Guarantor or a Restricted
Subsidiary for the benefit of its employees and (y) the
aggregate amount of any cash or other Property distributed by
the Company, a Guarantor or any Restricted Subsidiary upon any
such conversion or exchange, plus (without duplication)
(iv) an amount equal to the sum of:
(A) the net reduction in Investments in any Person other
than the Company, a Guarantor or a Restricted Subsidiary
resulting from dividends, repayments of loans or advances or
other transfers of Property or any other disposition or
repayment of such Investments, in each case to the Company, a
Guarantor or any Restricted Subsidiary from any Person (other
than the Company, a Guarantor or a Restricted Subsidiary),
less the cost of the disposition of such Investments, and
(B) the Fair Market Value of the Investment of the
Company, the Guarantors and Restricted Subsidiaries in an
Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary;
provided, however, that the foregoing sum described in Section
4.10(b)(3)(iv) shall not exceed the amount of Investments previously
made (and treated as a Restricted Payment) by the Company, a
Guarantor or any Restricted Subsidiary in such Person; plus
(v) $75 million.
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(c) Notwithstanding the foregoing limitation, the Company or any
Guarantor may:
(1) pay dividends on its Capital Stock within 60 days of the
declaration thereof if, on said declaration date, such dividends could
have been paid in compliance with this Indenture (for the avoidance of
doubt, such dividend shall be included in the calculation of the amount of
Restricted Payments only at the time such dividend is paid);
(2) purchase, repurchase, redeem, legally defease, acquire or retire
for value its Capital Stock or options, warrants or other rights to
acquire such Capital Stock or Subordinated Obligations in exchange for, or
out of the proceeds of the substantially concurrent sale of, its Capital
Stock (other than Disqualified Stock) or options, warrants or other rights
to acquire such Capital Stock (other than any such Capital Stock (or
options, warrants or other rights to acquire such Capital Stock) issued or
sold to a Restricted Subsidiary or an employee stock ownership plan or
trust established by the Company, a Guarantor or any such Restricted
Subsidiary for the benefit of its employees and except to the extent that
any purchase made pursuant to such issuance or sale is financed by the
Company, a Guarantor or any Restricted Subsidiary) or a capital
contribution to the Company or a Guarantor from a person other than the
Company, a Guarantor or a Restricted Subsidiary; provided, however, that
such purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall not be included in the calculation of the amount of
Restricted Payments and the Capital Stock Sale Proceeds from such exchange
or sale shall not be included in the calculation pursuant to Section
4.10(b)(3)(ii) above;
(3) purchase, repurchase, redeem, legally defease, acquire or retire
for value any Subordinated Obligations in exchange for or out of the
proceeds of the substantially concurrent sale of its Capital Stock (other
than Disqualified Stock) or options, warrants or other rights to acquire
such Capital Stock (other than any such Capital Stock (or options,
warrants or other rights to acquire such Capital Stock) issued or sold to
a Restricted Subsidiary or an employee stock ownership plan or trust
established by the Company, a Guarantor or any such Restricted Subsidiary
for the benefit of its employees and except to the extent that any
purchase made pursuant to such issuance or sale is financed by the
Company, a Guarantor or any Restricted Subsidiary) or a capital
contribution to the Company or a Guarantor from a Person other than the
Company, a Guarantor or a Restricted Subsidiary; provided that such
purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall not be included in the calculation of the amount of
Restricted Payments and the Capital Stock Sale Proceeds from such exchange
or sale shall not be included in the calculation pursuant to Section
4.10(b)(3)(ii) above;
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(4) purchase, repurchase, redeem, legally defease, acquire or retire
for value any Subordinated Obligations of the Company or any Guarantor in
exchange for, or out of the proceeds of the substantially concurrent sale
of, Permitted Refinancing Debt; provided that such purchase, repurchase,
redemption, legal defeasance, acquisition or retirement shall not be
included in the calculation of the amount of Restricted Payments;
(5) so long as no Default has occurred and is continuing, repurchase
or otherwise acquire shares of Capital Stock of Xxxxx; provided that the
aggregate amount of all such repurchases and other acquisitions shall not
exceed $30 million in any calendar year (any such amounts not used in a
calendar year shall be available for use in any subsequent year) and $120
million in the aggregate; provided, further, that such repurchase or other
acquisition shall be included in the calculation of the amount of
Restricted Payments;
(6) so long as no Default has occurred and is continuing, repurchase
or otherwise acquire shares of, or options to purchase shares of, Capital
Stock of the Company or a Guarantor from their employees, former
employees, directors or former directors, consultants or former
consultants (or permitted transferees of such employees, former employees,
directors or former directors) pursuant to the terms of agreements
(including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors of Xxxxx under which such individuals
purchase or sell, or are granted the option to purchase or sell, shares of
such Capital Stock; provided that the aggregate amount of all such
repurchases and other acquisitions (other than such repurchases or other
acquisitions made in connection with the Acquisition, which shall not be
limited) shall not exceed $10 million in any calendar year (any such
amounts not used in a calendar year shall be available for use in any
subsequent year); provided, further, that such repurchase or other
acquisition shall be excluded from the calculation of the amount of
Restricted Payments and the Capital Stock Sale Proceeds from such sales
shall not be included in the calculation pursuant to Section
4.10(b)(3)(ii) or (2) above;
(7) make cash payments in lieu of issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for equity interests of the Company or a
Guarantor (for the avoidance of doubt, such payments shall not be included
in the calculation of Restricted Payments);
(8) repurchase Capital Stock to the extent such repurchase is deemed
to occur upon a cashless exercise of stock options; provided that all such
repurchases shall not be included in the calculation of Restricted
Payments and no proceeds in respect of
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the issuance of Capital Stock shall be deemed to have been received for
the purposes of Section 4.10(b)(3)(ii) above;
(9) repurchase or redeem preferred stock purchase rights issued in
connection with any shareholder rights plan of Xxxxx;
(10) distribute the Escrowed Property and funds held pursuant to the
Credit Facility Escrow Arrangements to the Company on the date of the
Release, to the extent used in consummating the Acquisition and the
related refinancing transactions;
(11) so long as no Default or Event of Default shall have occurred
and be continuing, repurchase any Subordinated Obligations or Disqualified
Stock of the Company or a Guarantor at a purchase price not greater than
101% of the principal amount or liquidation preference of such
Subordinated Obligation or Disqualified Stock in the event of a Change of
Control pursuant to a provision similar to Section 4.08 in the documents
governing such Subordinated Obligation or Disqualified Stock; provided
that prior to consummating any such repurchase, the Company has made the
Change of Control Offer required by this Indenture and has repurchased all
notes validly tendered for payment in connection with such Change of
Control Offer; provided, further, that such payments shall be included in
the calculation of Restricted Payments;
(12) so long as no Default or Event of Default shall have occurred
and be continuing, following an Asset Sale, to the extent permitted by
Section 4.12, and using the Net Available Cash generated from such Asset
Sale, repurchase any Subordinated Obligation or Disqualified Stock of the
Company or a Guarantor at a purchase price not greater than 101% of the
principal amount or liquidation preference of such Subordinated Obligation
or Disqualified Stock pursuant to a provision similar to Section 4.12 in
the documents governing such Subordinated Obligation or Disqualified
Stock; provided that prior to consummating any such repurchase, the
Company has made the Prepayment Offer required by this Indenture and has
repurchased all Notes validly tendered for payment in connection with such
Prepayment Offer; provided, further, that such payments shall be included
in the calculation of Restricted Payments; and
(13) make any other Restricted Payment which, together with all
other Restricted Payments made pursuant to this Section 4.10(c)(13) since
the Issue Date, does not exceed $50 million; provided that no Default or
Event of Default shall have occurred and be continuing immediately after
making such Restricted Payment; provided, further, that such payments
shall be included in the calculation of Restricted Payments.
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The amount of any non-cash Restricted Payment shall be deemed to be
equal to the Fair Market Value thereof at the date of making such Restricted
Payment.
SECTION 4.11. Limitation on Liens.
Prior to the Release, the Company shall not, and shall not permit
any Restricted Subsidiary to, Incur or suffer to exist, any Lien upon any of its
Property (including Capital Stock of a Restricted Subsidiary and intercompany
notes), whether owned at the Issue Date or thereafter acquired, or any interest
therein or any income or profits therefrom that secures any obligation, except
the Lien of the Trustee on the Escrowed Property and the Lien under the Credit
Facility Escrow Arrangements.
From and after the Release, neither the Company nor any Guarantor
shall, and none of them shall permit any Restricted Subsidiary to, Incur or
suffer to exist any Lien (other than Permitted Liens) upon any of its Property
(including Capital Stock of a Restricted Subsidiary and intercompany notes),
whether owned at the Issue Date or thereafter acquired, or any interest therein
or any income or profits therefrom, unless it has made or will make effective
provision whereby the Notes or the relevant Notes Guarantee will be secured by
such Lien equally and ratably with (or prior to) all other obligations of the
Company, a Guarantor or any Restricted Subsidiary secured by such Lien until
such time as such obligations are no longer secured by a Lien.
The Lien on the Escrowed Property created for the benefit of the
Holders of the Notes shall provide by its terms that any such Lien will be
automatically and unconditionally released and discharged upon the Release.
SECTION 4.12. Limitation on Asset Sales.
(a) Prior to the Release, the Company shall not consummate an Asset
Sale except to the extent necessary to consummate the Release, the Special
Mandatory Redemption and the transactions contemplated by the Escrow and Pledge
Agreement. From and after the Release, neither the Company nor any Guarantor
shall, and none of them shall permit any Restricted Subsidiary to, consummate
any Asset Sale unless:
(1) the Company, such Guarantor or such Restricted Subsidiary
receives consideration at least equal to the Fair Market Value of the
Property subject to such Asset Sale;
(2) at least 75% of the consideration paid to the Company, such
Guarantor or such Restricted Subsidiary in connection with such Asset Sale
is in the form of (a) cash or Temporary Cash Investments; (b) the
assumption by the purchaser of liabilities of the Company, a Guarantor or
any Restricted Subsidiary (other than liabili-
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ties that are by their terms subordinated to the Notes or any Notes
Guarantee of such Guarantor) as a result of which the Company, the
Guarantors and the Restricted Subsidiaries are no longer obligated with
respect to such liabilities; (c) any securities, notes or other
obligations received by the Company or any such Guarantor or Restricted
Subsidiary from such transferee that are converted into cash (to the
extent of the cash received) within 60 days after receipt; (d) Property to
be used by the Company, a Guarantor or a Restricted Subsidiary in a
Related Business or Capital Stock of an entity engaged in a Related
Business so long as the receipt of such Capital Stock is a Permitted
Investment or otherwise complies with Section 4.10; or (e) a combination
of the consideration specified in clauses (a) through (d); and
(3) the Company delivers an Officers' Certificate to the Trustee
certifying that such Asset Sale complies with the foregoing clauses (1)
and (2).
(b) The Net Available Cash (or any portion thereof) from Asset Sales
may be applied by the Company, a Guarantor or a Restricted Subsidiary, to the
extent the Company or such Guarantor or Restricted Subsidiary elects (or is
required by the terms of any Debt):
(1) to permanently prepay or permanently repay any (i) Debt under
any Credit Facility, (ii) Debt which shall have been secured by the assets
sold in the relevant Asset Sale and (iii) Debt of a Restricted Subsidiary
that is not a Guarantor; and/or
(2) to reinvest in Additional Assets (including by means of an
Investment in Additional Assets with Net Available Cash received by the
Company, a Guarantor or a Restricted Subsidiary).
(c) Pending the final application of the Net Available Cash (or any
portion thereof), the Company, a Guarantor or a Restricted Subsidiary may
temporarily repay Debt under any Credit Facility or otherwise invest such
Net Available Cash in Temporary Cash Investments.
(d) Any Net Available Cash from an Asset Sale not applied in
accordance with Section 4.12(b) within 365 days from the date of the receipt of
such Net Available Cash shall constitute "Excess Proceeds."
(e) When the aggregate amount of Excess Proceeds exceeds $25
million, the Company will be required to make an offer to purchase (the
"Prepayment Offer") the Notes and any other Debt of the Company outstanding on
the date of the Prepayment Offer that is pari passu in right of payment with the
Notes or a Notes Guarantee and subject to terms and conditions in respect of
Asset Sales similar in all material respects to this Section 4.12 and requiring
the Company to make an offer to purchase such Debt at substantially the same
time as the Prepayment Offer, which offer shall be in the amount of the
Allocable Ex-
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cess Proceeds, on a pro rata basis according to principal amount, at a purchase
price equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the purchase date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the procedures (including prorating
in the event of over subscription) set forth herein. To the extent that any
portion of the amount of Net Available Cash remains after compliance with the
preceding sentence, the Company, such Guarantor or such Restricted Subsidiary
may use such remaining amount for any purpose not restricted by this Indenture
and the amount of Excess Proceeds will be reset to zero.
The term "Allocable Excess Proceeds" will mean the product of:
(a) the Excess Proceeds and
(b) a fraction,
(1) the numerator of which is the aggregate principal amount
of the Notes outstanding on the date of the Prepayment Offer,
together with any accrued and unpaid interest, and
(2) the denominator of which is the sum of (A) the aggregate
principal amount of the Notes outstanding on the date of the
Prepayment Offer, together with any accrued and unpaid interest, and
(B) the aggregate principal amount of other Debt of the Company or a
Guarantor outstanding on the date of the Prepayment Offer that is
pari passu in right of payment with the Notes or a Notes Guarantee,
as the case may be, and subject to terms and conditions in respect
of Asset Sales similar in all material respects to this Section 4.12
and requiring the Company or a Guarantor to make an offer to
purchase such Debt at substantially the same time as the Prepayment
Offer (subject to proration in the event that such amount is less
than the aggregate offer price of all Notes tendered).
(f) Within 15 Business Days after the Company is obligated to make a
Prepayment Offer as described in Section 4.12(d), the Company shall send a
written notice, by first-class mail, to the Holders of Notes, accompanied by
such information regarding the Company and the Guarantors as the Company in good
faith believes will enable such Holders to make an informed decision with
respect to such Prepayment Offer. Such notice shall state, among other things,
the purchase price and the purchase date (the "Purchase Date"), which shall be,
subject to any contrary requirements of applicable law, a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed.
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(g) Not later than the date upon which written notice of a
Prepayment Offer is delivered to the Trustee as provided in Section 4.12(e), the
Company shall deliver to the Trustee an Officers' Certificate as to (i) the
amount of the Prepayment Offer (the "Offer Amount"), (ii) the allocation of the
Net Available Cash from the Asset Sales pursuant to which such Prepayment Offer
is being made and (iii) the compliance of such allocation with Section 4.12(b).
On or before the Purchase Date, the Company shall also irrevocably deposit with
the Trustee or with the Paying Agent (or, if the Company or a Wholly Owned
Restricted Subsidiary is the Paying Agent, shall segregate and hold in trust) in
Temporary Cash Investments (other than in those enumerated in clause (b) of the
definition of Temporary Cash Investments), maturing on the last day prior to the
Purchase Date or on the Purchase Date if funds are immediately available by the
opening of business, an amount equal to the Offer Amount to be held for payment
in accordance with the provisions of this Section 4.12. Upon the expiration of
the period for which the Prepayment Offer remains open (the "Offer Period"), the
Company shall deliver to the Trustee for cancellation the Notes or portions
thereof that have been properly tendered to and are to be accepted by the
Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or
deliver payment to each tendering Holder in the amount of the purchase price. In
the event that the aggregate purchase price of the Notes delivered by the
Company to the Trustee is less than the Offer Amount, the Trustee or the Paying
Agent shall deliver the excess to the Company immediately after the expiration
of the Offer Period for application in accordance with this Section 4.12.
(h) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Company or
its agent at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Note that was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing its election to have such Note purchased. If at the expiration of
the Offer Period the aggregate principal amount of Notes surrendered by Holders
exceeds the Offer Amount, the Company shall select the Notes to be purchased on
a pro rata basis for all Notes (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased). Holders whose Notes are
purchased only in part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered.
(i) At the time the Company or its agent delivers Notes to the
Trustee that are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Notes are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 4.12. A Note shall
be deemed to have been accepted for purchase at the
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time the Trustee or the Paying Agent mails or delivers payment therefor to the
surrendering Holder.
(j) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other applicable
securities laws or regulations in connection with the repurchase of Notes
pursuant to this Section 4.12, including any applicable securities laws of the
United States. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.12, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.12 by virtue
thereof.
SECTION 4.13. Limitation on Restrictions on Distributions from Restricted
Subsidiaries.
(a) Neither the Company nor a Guarantor shall, and neither of them
shall permit any Restricted Subsidiary to, create or otherwise cause or suffer
to exist any consensual restriction on the right of any Restricted Subsidiary
to:
(1) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock to the Company, a
Guarantor or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company, a
Guarantor or any other Restricted Subsidiary,
(3) make any loans or advances to the Company, a Guarantor or any
other Restricted Subsidiary, or
(4) transfer any of its Property to the Company, a Guarantor or any
other Restricted Subsidiary.
(b) The foregoing limitations will not apply:
(1) with respect to Sections 4.13(a)(1), (2), (3) and (4), to
restrictions which are:
(A) in effect on the Issue Date (as such restrictions may be
amended from time to time; provided that any such amendment is not
materially more restrictive as to a Restricted Subsidiary);
(B) imposed by the Notes or this Indenture, or by indentures
governing other Debt the Company or a Guarantor Incurs (and, if such
Debt is Guaranteed, by the guarantors of such Debt) ranking on a
parity with the Notes or
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the Notes Guarantees; provided that the restrictions imposed by such
indentures are no more restrictive than the restrictions imposed by
this Indenture;
(C) imposed by a Credit Facility with respect to Debt
permitted to be Incurred on or subsequent to the date of this
Indenture; provided that the restrictions imposed by such Credit
Facility on the ability of any Restricted Subsidiary to take action
under Section 4.13(a)(1), (2), (3) or (4) above are not materially
more restrictive than the restrictions imposed by the Credit
Agreement;
(D) imposed by Debt of a Restricted Subsidiary existing at the
time it became a Restricted Subsidiary if such restriction was not
created in connection with or in anticipation of the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by the
Company or a Guarantor;
(E) that result from the Refinancing of Debt Incurred pursuant
to an agreement referred to in Section 4.13(a)(1) or (4) above;
provided such restriction is no less favorable in any material
respect to the Holders of Notes than those under the agreement
evidencing the Debt so Refinanced when taken as a whole;
(F) restrictions on cash or other deposits or net worth
imposed by leases or other agreements entered into in the ordinary
course of business;
(G) any encumbrances or restrictions required by any
governmental, local or regulatory authority having jurisdiction over
the Company, a Guarantor or any Restricted Subsidiary or any of
their businesses in connection with any development grant made or
other assistance provided to the Company, a Guarantor or any
Restricted Subsidiary by such governmental authority;
(H) customary provisions in joint venture or similar
agreements or other arrangements with minority investors in
Restricted Subsidiaries and customary provisions in Debt Incurred by
Restricted Subsidiaries organized outside the United States;
provided, however, that such encumbrance or restriction is
applicable only to such Restricted Subsidiary; and provided,
further, that (i) the encumbrance or restriction is customary in
comparable agreements and (ii) the Company determines that any such
encumbrance or restriction will not materially affect the ability of
the Company to make any anticipated payments of principal or
interest on the Notes;
(I) with respect to a Securitization Entity in connection with
a Qualified Securitization Transaction; provided, however, that such
encum-
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brances and restrictions are customarily required by the
institutional sponsor or arranger of such Qualified Securitization
Transaction in similar types of documents relating to the purchase
of similar receivables in connection with the financing thereof;
(J) customary restrictions contained in asset sale agreements,
stock sale agreements and other similar agreements limiting the
transfer, disposition or distribution of such Property pending the
closing of such sale, including any restriction imposed with respect
to such Restricted Subsidiary pursuant to an agreement to dispose of
all or substantially all the Capital Stock or assets of such
Restricted Subsidiary; or
(K) customary restrictions imposed on the transfer of
copyrighted or patented materials or other intellectual property and
customary provisions in agreements that restrict the assignment of
such agreements or any rights thereunder.
(2) with respect to Section 4.12(a)(4) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and
secured without also securing the Notes pursuant to Section 4.11
that limit the right of the debtor to dispose of the Property
securing such Debt,
(B) encumbering Property at the time such Property was
acquired by the Company or any Restricted Subsidiary, so long as
such restriction relates solely to the Property so acquired and was
not created in connection with or in anticipation of such
acquisition,
(C) resulting from customary provisions restricting subletting
or assignment of leases or customary provisions in other agreements
that restrict assignment of such agreements or rights thereunder,
(D) imposed by virtue of any transfer of, agreement to
transfer, option or right with respect to or Lien on, any Property
of the Company or the relevant Restricted Subsidiary not otherwise
prohibited by this Indenture, or
(E) imposed under any Purchase Money Debt or Capital Lease
Obligation in the ordinary course of business with respect only to
the Property the subject thereof.
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SECTION 4.14. Limitation on Transactions with Affiliates.
(a) On or prior to the Release, the Company will not enter into or
suffer to exist any Affiliate Transaction (as defined below) other than to the
extent necessary to consummate the Acquisition, the Escrow and Pledge Agreement,
the Release or the Special Mandatory Redemption and the Credit Facility Escrow
Arrangements. From and after the Release, neither the Company nor any Guarantor
shall, and neither of them shall permit any Restricted Subsidiary to, enter into
or suffer to exist any transaction or series of related transactions (including
the purchase, sale, transfer, assignment, lease, conveyance or exchange of any
Property or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an "Affiliate Transaction"), unless:
(1) the terms of such Affiliate Transaction are no less
favorable to the Company, such Guarantor or such Restricted
Subsidiary, as the case may be, than those that could be obtained in
a comparable arm's-length transaction with a Person that is not an
Affiliate of the Company,
(2) if such Affiliate Transaction involves aggregate payments
or value in excess of $10 million, a majority of the disinterested
members of the Board of Directors of Xxxxx or, if there is only one
disinterested director, such disinterested director, determines that
such Affiliate Transaction complies with clause (a)(1) of this
Section 4.14 as evidenced in the minutes or other evidence of Board
action, and
(3) if such Affiliate Transaction involves aggregate payments or
value in excess of $50 million, the Company obtains a written opinion from
an Independent Financial Advisor to the effect that the consideration to
be paid or received in connection with such Affiliate Transaction is fair,
from a financial point of view, to the Company, such Guarantor or such
Restricted Subsidiary, as applicable.
(b) Notwithstanding the foregoing limitation, the Company, a
Guarantor or any Restricted Subsidiary may make, enter into or suffer to exist
the following:
(1) any transaction or series of related transactions between or
among the Company, one or more Guarantors or one or more Restricted
Subsidiaries or between or among two or more Guarantors or Restricted
Subsidiaries;
(2) any Restricted Payment permitted to be made pursuant to Section
4.10 or any Permitted Investment;
(3) the payment of reasonable compensation (including awards or
grants in cash, securities or other payments) for the personal services of
officers, directors, con-
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sultants and employees of the Company or any of the Restricted
Subsidiaries in the ordinary course of business;
(4) transactions or other arrangements pursuant to employment
agreements, collective bargaining agreements, employee benefit plans, or
arrangements for employees, officers or directors, including vacation
plans, health and life insurance plans, deferred compensation plans,
directors' and officers' indemnification arrangements and retirement or
savings plans, stock option, stock ownership and similar plans so long as
the Board of Directors of Xxxxx or a committee thereof comprised of
disinterested directors or a disinterested Officer of Xxxxx in good faith
shall have approved the terms thereof;
(5) loans and advances to officers, directors or employees (or
guarantees of third-party loans to officers, directors or employees) made
in the ordinary course of business, provided that such loans and advances
do not exceed $10 million in the aggregate at any one time outstanding;
(6) transactions with customers, clients, suppliers or purchasers or
sellers of goods or services, in each case in the ordinary course of
business and otherwise in compliance with the terms of this Indenture
which are fair to the Company, the Guarantors or the Restricted
Subsidiaries, as the case may be, or are on terms no less favorable than
might reasonably have been obtained at such time from an unaffiliated
party; provided that such transactions are approved by a majority of
disinterested directors of the Board of Directors of Xxxxx or, if there is
only one disinterested director, such director;
(7) payments to Greenwich Street Capital Partners, L.P. or its
Affiliates pursuant to monitoring or similar arrangements approved by a
majority of disinterested directors of the Board of Directors of Xxxxx, or
if there is only one disinterested director, such director;
(8) the issuance and sale of Capital Stock (other than Disqualified
Stock) of Xxxxx;
(9) transactions with Persons in their capacity as holders of Debt
or Capital Stock of the Company, any Guarantor or any Restricted
Subsidiary where such Persons are treated no more favorably than holders
of Debt or Capital Stock of the Company, any Guarantor or any Restricted
Subsidiary generally;
(10) transactions pursuant to any agreement as in effect on the date
of this Indenture or transactions of Xxxxxxx and its subsidiaries with, or
for the benefit of, any Person that becomes an Affiliate of the Company as
a result of the consummation of
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the Acquisition pursuant to any agreement as in effect on the date of this
Indenture, as the same may be amended from time to time in any manner not
materially less favorable to the Holders of the Notes; provided any such
amendment does not increase the amount payable thereunder to an Affiliate;
and
(11) sales, transfers or dispositions of Receivables and Related
Assets to a Securitization Entity and acquisitions of Investments in
connection therewith.
SECTION 4.15. Designation of Restricted and Unrestricted Subsidiaries.
(a) From and after the Release, by resolution of the Board of
Directors of the Company and the Board of Directors of Xxxxx, any Subsidiary of
Xxxxx (or Person that is to become a Subsidiary of Xxxxx) may be designated to
be an Unrestricted Subsidiary if:
(x) the Subsidiary to be so designated does not and will not so long
as it is an Unrestricted Subsidiary own any Capital Stock or Debt of, or
own or hold any Lien on any Property of, the Company, a Guarantor or any
Restricted Subsidiary and does not and will not so long as it is an
Unrestricted Subsidiary have any Debt other than Non-Recourse Debt, and
(y) the Company and the Guarantors would be permitted under Section
4.10 to make a Restricted Payment in an amount equal to the Fair Market
Value of Xxxxx'x Investment in such Subsidiary. For the purposes of this
provision, in the event the Fair Market Value of such assets exceeds $50
million, such Fair Market Value shall be determined by an Independent
Financial Advisor.
Unless so designated as an Unrestricted Subsidiary at the time a Person becomes
a Subsidiary of Xxxxx, any Person that becomes a Subsidiary of Xxxxx will be
classified as a Restricted Subsidiary at such time.
(b) Except as provided in Section 4.15(a), no Restricted Subsidiary
may be redesignated as an Unrestricted Subsidiary. In addition, none of the
Company, a Guarantor or any Restricted Subsidiary shall at any time be directly
or indirectly liable for any Debt that provides that the holder thereof may
(with the passage of time or notice or both) declare a default thereon or cause
the payment thereof to be accelerated or payable prior to its Stated Maturity
upon the occurrence of a default with respect to any Debt, Lien or other
obligation of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary).
By resolution of the Board of Directors of the Company and the Board
of Directors of Xxxxx, any Unrestricted Subsidiary may be designated to be a
Restricted Subsidiary if, immediately after giving pro forma effect to such
designation,
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(x) the Company could Incur at least $l.00 of additional Debt
pursuant to Section 4.09(b) and
(y) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
Any such designation or redesignation will be evidenced to the
Trustee by filing with the Trustee the Board Resolutions giving effect to such
designation or redesignation and an Officers' Certificate of the Company that:
(x) certifies that such designation or redesignation complies with
the provisions of this Section 4.15, and
(y) gives the effective date of such designation or redesignation,
such filing with the Trustee to occur on or before the time financial statements
are filed with the Commission or the Trustee pursuant to Section 4.17 in respect
of the fiscal quarter of the Company in which such designation or redesignation
is made (or, in the case of a designation or redesignation made during the last
fiscal quarter of the Company's fiscal year, on or before the time financial
statements in respect of such fiscal year are filed with the Commission or the
Trustee pursuant to Section 4.18).
SECTION 4.16. Creation of Subsidiaries; Additional Subsidiary Guarantees.
Notwithstanding anything herein to the contrary, the Company will
not create, acquire or form any Subsidiaries.
Xxxxx will not permit any of its Subsidiaries having assets, at any
time, with a Fair Market Value in excess of $10,000 to Guarantee or pledge any
assets to secure the payment of any other Debt of the Company, a Guarantor or a
Restricted Subsidiary (other than a Guarantee by a Restricted Subsidiary that is
not a Guarantor that is organized outside the United States or another similar
Restricted Subsidiary) unless such Subsidiary simultaneously executes and
delivers a supplemental indenture providing for the Guarantee of the payment of
the Notes by such Subsidiary, which Guarantee shall be senior to or pari passu
with such Subsidiary's Guarantee of or pledge to secure such other Debt;
provided that if such Subsidiary is organized outside the United States or
Canada and such other Debt that is being guaranteed is Senior Credit Facility
Debt, then such Subsidiary's Guarantee shall be subordinated on the same terms
and conditions as the Subordinated Subsidiary Guarantees.
The Notes Guarantee of a Guarantor will be released if
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(1) any Guarantor is designated as an Unrestricted Subsidiary in
accordance with the applicable provisions of this Indenture; or
(2) in connection with the sale of (A) that number of shares of
Capital Stock of a Guarantor such that such Guarantor is no longer a
Subsidiary of Xxxxx or (B) all or substantially all of the assets of a
Guarantor to a Person that is not the Company or a Guarantor or a
Restricted Subsidiary; provided that such sale complies with Section 4.12
hereof.
In addition, in the event a Subsidiary becomes a Guarantor solely
because it Guarantees other Debt, then upon the full and unconditional release
of the Guarantee of such other Debt (provided that the Trustee is given two
Business Days' written notice of such other release) such Guarantee of such
Subsidiary shall also be released.
SECTION 4.17. Limitation of Company's Business.
Prior to the Release, the Company shall not engage in any line of
business or own any other assets other than as necessary to consummate the
Release or the Special Mandatory Redemption and the transactions contemplated by
the Escrow and Pledge Agreement, and the Credit Facility Escrow Arrangements.
After the Release, the Company shall not own any assets or engage in any
business other than Incurring Debt, as permitted by Section 4.09 hereof and
servicing and repaying such Debt and the Notes. The Board of Directors and
Officers of the Company shall at all times be comprised of members of the Board
of Directors and/or Officers of Xxxxx. Xxxxx shall not, and shall not permit any
Guarantor or Restricted Subsidiary to, engage in any business other than the
Business it or Xxxxxxx is engaged in on the Issue Date or a Related Business.
SECTION 4.18. Reports to Holders.
Whether or not Xxxxx is then subject to Section 13(a) or 15(d) of
the Exchange Act, Xxxxx will electronically file with the Commission, so long as
the Notes are outstanding, the annual reports, quarterly reports and other
periodic reports that Xxxxx would be required to file with the Commission
pursuant to Section 13(a) or 15(d) if Xxxxx were so subject, and such documents
will be filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which Xxxxx would be required so to file such
documents if Xxxxx were so subject, unless, in any case, such filings are not
then permitted by the Commission.
If such filings with the Commission are not then permitted by the
Commission, or such filings are not generally available on the Internet free of
charge, the Company will, without charge to the Holders, within 15 days of each
Required Filing Date, transmit by mail to Holders, as their names and addresses
appear in the Note register, and file with the Trustee
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copies of the annual reports, quarterly reports and other periodic reports that
Xxxxx would be required to file with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act if it were subject to such Section 13(a) or 15(d) and,
promptly upon written request, supply copies of such documents to any
prospective Holder or beneficial owner at Xxxxx'x cost.
So long as any of the Notes remain restricted under Rule 144, Xxxxx
will make available upon request to any prospective purchaser of Notes or
beneficial owner of Notes in connection with any sale thereof the information
required by Rule 144A(d)(4) under the Securities Act.
Delivery of 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).
All references in this Agreement to the filing of documents with the
Commission includes, at such time as is permitted pursuant to this Section, the
delivering of the same to the Trustee.
SECTION 4.19. Covenant Suspension.
(a) During any period of time that the Notes have Investment Grade Ratings
from the Required Rating Agencies, the Company, and the Restricted Subsidiaries
shall not be subject to the following provisions of this Indenture:
- Section 4.08,
- Section 4.09,
- Section 4.10,
- Section 4.12,
- Section 4.13,
- Section 4.14,
- Section 4.15(b)(x),
- Section 4.17, and
- Section 5.01(b)(4) and (c)
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(collectively, the "Suspended Covenants").
(b) In the event that the Company, the Guarantors and the Restricted
Subsidiaries are not subject to the Suspended Covenants for any period of time
as a result of clause (a) of this Section 4.19 and, subsequently, a Required
Rating Agency withdraws its rating or downgrades the rating assigned to the
Notes so that the Notes no longer have Investment Grade Ratings from the
Required Rating Agencies or a Default or Event of Default occurs and is
continuing, then the Company, the Guarantors and the Restricted Subsidiaries
shall from such time and thereafter again be subject to the Suspended Covenants,
and compliance with the Suspended Covenants with respect to Restricted Payments
made after the time of such withdrawal, downgrade, Default or Event of Default
will be calculated in accordance with the terms of Section 4.10 as though such
Section 4.10 had been in effect during the entire period of time from the Issue
Date, it being understood that no actions taken by the Company, the Guarantors
or any of their Restricted Subsidiaries during the suspension period shall
constitute a Default or an Event of Default under the Suspended Covenants.
SECTION 4.20. Additional Amounts.
All payments made by Xxxxx or any other Guarantor organized in
Canada ("Canadian Guarantor") with respect to its Guarantee will be made free
and clear of and without withholding or deduction for or on account of any
present or future Taxes, unless such Canadian Guarantor is required to withhold
or deduct Taxes by law or by the interpretation or administration thereof. If
Canadian Guarantor is required to withhold or deduct any amount for or on
account of Taxes from any payment made under or with respect to its Guarantee,
Canadian Guarantor will pay such additional amounts ("Additional Amounts") as
may be necessary so that the net amount received by each holder of Notes
(including Additional Amounts) after such withholding or deduction will not be
less than the amount the holder would have received if such Taxes had not been
withheld or deducted; provided that no Additional Amounts will be payable with
respect to a payment made to a holder of Notes (an "Excluded Holder") (i) with
which Canadian Guarantor does not deal at arm's length (within the meaning of
the Income Tax Act (Canada)) at the time of making such payment or at the time
that any such payment is deemed to be paid or credited or (ii) which is subject
to Taxes by reason of its being connected with Canada or any province or
territory thereof otherwise than by the mere acquisition, holding or disposition
of the Notes or the receipt of payments thereunder. Canadian Guarantor will also
(i) make such withholding or deduction and (ii) remit the full amount deducted
or withheld to the relevant authority in accordance with applicable law. Xxxxx
will furnish to the Trustee within 30 days after the date of the payment of any
Taxes due pursuant to applicable law a certification that such payment has been
made.
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Xxxxx will indemnify and hold harmless each holder of Notes (other
than an Excluded Holder), and upon written request of any holder of Notes (other
than an Excluded Holder), reimburse each such holder for the amount of (i) any
Taxes so levied or imposed and paid by such holder as a result of payments made
under or with respect to a Canadian Guarantor Guarantee; (ii) any liability
(including penalties, interest and expense) arising therefrom or with respect
thereto, and (iii) any such Taxes so levied or imposed with respect to any
reimbursement under the foregoing clause (i) or (ii) so that the net amount
received by such holder after such reimbursement will not be less than the net
amount the holder would have received if Taxes on such reimbursement had not
been imposed.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Property.
(a) Prior to the Release, except in connection with the Release or
the Special Mandatory Redemption and the transactions contemplated by the Escrow
and Pledge Agreement, the Company shall not merge, consolidate or amalgamate
with or into any other Person or sell, transfer, assign, lease, convey or
otherwise dispose of all or substantially all its Property in any one
transaction or series of related transactions.
(b) From and after the Release, neither the Company nor Xxxxx shall
merge, consolidate or amalgamate with or into any other Person (other than a
merger of a Wholly Owned Restricted Subsidiary into Xxxxx or the merger of Xxxxx
Holdings, Xxxxx XX or Xxxxxxx into Xxxxx) or sell, transfer, assign, lease,
convey or otherwise dispose of all or substantially all its Property in any one
transaction or series of related transactions, unless:
(1) the Company or Xxxxx, as the case may be, shall be the surviving
Person (the "Surviving Person") or the Surviving Person (if other than the
Company or Xxxxx) formed by such merger, consolidation or amalgamation or
to which such sale, transfer, assignment, lease, conveyance or disposition
is made which is substituted for the Company as the issuer of the Notes
or, in the case of Xxxxx, as a Guarantor, shall be a corporation (in the
case of the Issuer of the Notes) or a corporation, limited liability
company, trust, partnership or similar entity (in the case of a Guarantor)
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia or, in the case of Xxxxx, under
the laws of Canada or any province or territory thereof;
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(2) the Surviving Person (if other than the Company or Xxxxx)
expressly assumes, by supplemental indenture in form reasonably
satisfactory to the Trustee, executed and delivered to the Trustee by such
Surviving Person, (x) the due and punctual payment of the principal amount
of the Notes, any accrued and unpaid interest on such principal amount,
according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be
performed by such Person or (y) all obligations under the relevant
Guarantee, as appropriate;
(3) immediately before and after giving effect to such transaction
or series of related transactions on a pro forma basis (and treating, for
purposes of this Section 5.01(b)(3) and Sections 5.01(b)(4) and (b)(5)
below, any Debt that becomes, or is anticipated to become, an obligation
of the Surviving Person or any Restricted Subsidiary as a result of such
transaction or series of related transactions as having been Incurred by
the Surviving Person or such Restricted Subsidiary at the time of such
transaction or series of related transactions), no Default or Event of
Default shall have occurred and be continuing;
(4) immediately after giving effect to such transaction or series of
related transactions on a pro forma basis, the Company or the Surviving
Person (if other than the Company) would be able to Incur at least $1.00
of additional Debt pursuant to Section 4.09(b); and
(5) the Surviving Person shall deliver, or cause to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an Opinion of Counsel, each stating that such
transaction and the supplemental indenture, if any, in respect thereof
comply with this Section 5.01 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
(c) None of the Subsidiary Guarantors shall merge, consolidate or
amalgamate with or into any other Person in any one transaction or series of
related transactions (other than (i) a merger of a Subsidiary Guarantor with or
into a Guarantor or a Wholly Owned Restricted Subsidiary (other than an
Unrestricted Subsidiary) into a Subsidiary Guarantor or (ii) a merger,
consolidation, amalgamation or sale of all or substantially all of the Property
of a Subsidiary Guarantor in connection with the sale of such Subsidiary
Guarantor or its Property to a non-Affiliate third party that does not become an
Affiliate as a result of such transaction and is otherwise permitted under this
Indenture) unless:
(1) the Surviving Person (if not such Subsidiary Guarantor) formed
by such merger, consolidation or amalgamation or to which such sale,
transfer, assignment, lease, conveyance or disposition is made shall be a
corporation, limited liability company, trust, partnership or similar
entity organized and existing under the laws of
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United States of America, any State thereof or the District of Columbia or
under the same jurisdiction as such Subsidiary Guarantor;
(2) the Surviving Person (if other than such Subsidiary Guarantor)
expressly assumes, by Subsidiary Guarantee in form satisfactory to the
Trustee, executed and delivered to the Trustee by such Surviving Person,
the due and punctual performance and observance of all the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee;
(3) immediately before and after giving effect to such transaction
or series of related transactions on a pro forma basis (and treating, for
purposes of this Section 5.01(c)(3) and Section 5.01(c)(4) and (5) below,
any Debt that becomes, or is anticipated to become, an obligation of the
Surviving Person, the Company, a Guarantor or any Restricted Subsidiary as
a result of such transaction or series of related transactions as having
been Incurred by the Surviving Person, the Company or such Guarantor or
Restricted Subsidiary at the time of such transaction or series of related
transactions), no Default or Event of Default shall have occurred and be
continuing;
(4) immediately after giving effect to such transaction or series of
related transactions on a pro forma basis, the Company would be able to
Incur at least $1.00 of additional Debt pursuant to Section 4.09(b); and
(5) the Company and Xxxxx shall deliver, or cause to be delivered,
to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such transaction and such Subsidiary Guarantee, if any, in respect
thereto comply with this Section 5.01 and that all conditions precedent
herein provided for relating to such transaction have been satisfied.
(d) The provisions of Section 5.01(c) shall not apply to (i) any
transactions which constitute an Asset Sale if the Company has complied with
Section 4.12 or (ii) a merger of the Company or Xxxxx or a Subsidiary Guarantor
with an Affiliate that is organized in any state of the United States or Canada
with no material assets or liabilities and which merger is solely for the
purpose of reincorporating such Person in another jurisdiction in the United
States or Canada.
(e) The Surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of its predecessor under this Indenture.
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SECTION 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of either the Company or any Restricted
Subsidiary in accordance with Section 5.01 above, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made shall succeed to, and be substituted for, and may exercise
every right and power the Company or such Restricted Subsidiary under this
Indenture with the same effect as if such successor corporation had been named
as the Company or such Restricted Subsidiary herein, and thereafter the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
The following events shall be "Events of Default":
(1) the Company defaults in any payment of interest on any Note when
the same becomes due and payable and such default continues for a period
of 30 days;
(2) the Company defaults in the payment of the principal amount of
any Note when the same becomes due and payable at its Stated Maturity,
upon acceleration, redemption, optional redemption, required repurchase or
otherwise;
(3) a failure to comply with Section 5.01 or 5.02;
(4) a failure to comply with any covenant or agreement in the Notes
or in this Indenture (other than a failure that is the subject of Section
6.01(1), (2) or (3)) and such failure continues for 60 days after written
notice is given to the Company as specified in this Section 6.01;
(5) a default by the Company, a Guarantor or any Restricted
Subsidiary (other than a Securitization Entity) under any Debt of the
Company, a Guarantor or any Restricted Subsidiary (other than a
Securitization Entity) that results in acceleration of the final maturity
of such Debt, or the failure to pay any such Debt at final maturity, in an
aggregate principal amount in excess of $20 million;
(6) either Parent, the Company, Xxxxx XX or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
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(A) commences a voluntary insolvency proceeding;
(B) consents to the entry of an order for relief against it in
an involuntary insolvency proceeding or consents to its dissolution
or winding-up;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency; provided, however, that the liquidation of any Restricted
Subsidiary into another Restricted Subsidiary, other than as part of a
credit reorganization, shall not constitute an Event of Default under this
Section 6.01(6);
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against either Parent, the Company, Xxxxx XX
or any Significant Subsidiary in an involuntary insolvency
proceeding;
(B) appoints a Custodian of either Parent, the Company, Xxxxx
XX or any Significant Subsidiary or for any substantial part of its
property;
(C) orders the winding-up, liquidation or dissolution of
either Parent, the Company, Xxxxx XX or any Significant Subsidiary;
(D) orders the presentation of any plan or arrangement,
compromise or reorganization of either Parent, the Company, Xxxxx XX
or any Significant Subsidiary; or
(E) grants any similar relief under any foreign laws;
and in each such case the order or decree remains unstayed and in effect
for 90 days;
(8) any judgment or judgments for the payment of money in an
unsecured aggregate amount (net of any amount covered by insurance issued
by a reputable and creditworthy insurer that has not contested coverage or
reserved rights with respect to the underlying claim and that continues to
make payments pursuant to the terms of the relevant policy) in excess of
$20 million at the time entered against the Company, Xxxxx or any
Significant Subsidiary and shall not be waived, satisfied or discharged
for any period of 60 consecutive days during which a stay of enforcement
shall not be in effect or otherwise payable; or
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(9) (a) a Parent Guarantee, a Sister Guarantee or any Subsidiary
Guarantee from a Significant Subsidiary ceases to be in full force and
effect (other than in accordance with the terms of such Guarantee) or (b)
either of the Parents, either of the Sister Guarantors or any Subsidiary
Guarantor that is a Significant Subsidiary denies or disaffirms its
obligations under its Guarantee.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
A Default under Section 6.01(4) is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount at maturity
of the Notes then outstanding notify the Company (and in the case of such notice
by Holders, the Trustee) of the Default and such Default is not cured within the
time specified after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default and any event that with the giving of notice or the lapse
of time would become an Event of Default, its status and what action the Company
is taking or proposes to take with respect thereto.
The Company shall immediately notify the Trustee if a meeting of the
Board of Directors of the Company, either Sister Guarantor or either Parent is
convened to consider any action mandated by a petition for debt settlement
proceedings or bankruptcy proceedings. The Company shall also promptly advise
the Trustee of the approval of the filing of a debt settlement or bankruptcy
petition prior to the filing of such petition.
SECTION 6.02. Acceleration of Maturity; Rescission.
If an Event of Default with respect to the Notes (other than an
Event of Default specified in Sections 6.01(6) and 6.01(7) with respect to the
Company, the Parents, Xxxxx XX or a Significant Subsidiary) shall have occurred
and be continuing, the Trustee or the registered Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding may declare to be
immediately due and payable the principal amount of all the Notes then
outstanding by written notice to the Company and the Trustee, plus accrued but
unpaid interest to the date of acceleration. In case an Event of Default
specified in Sections 6.01(6) and 6.01(7) with respect to the Company, the
Parents, Xxxxx XX or a Significant Subsidiary shall occur, such amount with
respect to all the Notes shall be automatically due and payable immediately
without any declaration or other act on the part of the Trustee or the Holders
of the Notes. After any such acceleration, but before a judgment or decree based
on acceleration
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is obtained by the Trustee, the registered Holders of a majority in aggregate
principal amount of the Notes then outstanding may rescind and annul such
acceleration if (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal, premium or interest that has become due solely because
of the acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and all
other amounts due to the Trustee under Section 7.07 and (v) in the event of the
cure or waiver of an Event of Default of the type described in either Section
6.01(6) or (7), the Trustee shall have received an Officers' Certificate to the
effect that such Event of Default has been cured or waived. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
In the event of a declaration of acceleration of the Notes because
an Event of Default described in Section 6.01(5) has occurred and is continuing,
the declaration of acceleration of the Notes shall be automatically annulled if
the Payment Default or other default triggering such Event of Default pursuant
to Section 6.01(5) shall be remedied or cured by the Company, a Guarantor or a
Restricted Subsidiary or waived by the holders of the relevant Debt within the
grace period applicable to such default provided for in the documentation
governing such Debt and if (a) the annulment of the acceleration of the Notes
would not conflict with any judgment or decree of a court of competent
jurisdiction and (b) all existing Events of Default, except nonpayment of
principal, premium or interest on the Notes that became due solely because of
the acceleration of the Notes, have been cured or waived.
Subject to Section 7.01, in case an Event of Default shall occur and
be continuing, the Trustee shall be under no obligation to exercise any of its
rights or powers under this Indenture at the request or direction of any of the
Holders of the Notes, unless such Holders shall have offered to the Trustee
reasonable indemnity. Subject to Section 7.07, the Holders of a majority in
aggregate principal amount of the Notes then outstanding will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Notes.
No Holder of Notes will have any right to institute any proceeding
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice
of a continuing Event of Default,
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(b) the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee, and
(c) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a
direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days after such notice, request and
offer. However, such limitations do not apply to a suit instituted by a
Holder of any Note for enforcement of payment of the principal of, and
premium, if any, or interest on, such Note on or after the respective due
dates expressed in such Note.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
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. Any such
proceeding instituted by the Trustee may be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements of the
Trustee and its counsel, be for the ratable benefit of the Holders of the Notes
in respect of which such judgment has been recovered. A delay or omission by the
Trustee or any Holder 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. No remedy is exclusive of any other
remedy. All available remedies are cumulative, to the extent permitted by law.
Any costs associated with actions taken by the Trustee under this Section 6.03
shall be reimbursed to the Trustee by the Company.
SECTION 6.04. Waiver of Past Defaults and Events of Default.
Provided the Notes are not then due and payable by reason of a
declaration of acceleration, the Holders of a majority in principal amount of
Notes at the time outstanding may on behalf of the Holders of all the Notes
waive any past Default with respect to such Notes and its consequences by
providing written notice thereof to the Company and the Trustee, except a
Default (1) in the payment of interest on or the principal of any Note or (2) in
respect of a covenant or provision hereof which under this Indenture cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected. In the case of
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any such waiver, the Company, the Trustee and the Holders of the Notes will be
restored to their former positions and rights under this Indenture,
respectively; provided that no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority.
The Holders of at least a majority in aggregate principal amount of
the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders of the Notes not joining in the
giving of such direction and may take any other action it deems proper that is
not inconsistent with any such direction received from Holders of the Notes.
SECTION 6.06. Limitation on Suits.
No Holder of Notes will have any right to institute any proceeding
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any remedy hereunder, unless:
(1) the Holder gives the Trustee written notice of a continuing
Event of Default,
(2) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to institute such
proceeding or pursue such remedy as trustee,
(3) such Holder or Holders offer the Trustee indemnity satisfactory
to the Trustee against any costs, liability or expense,
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity, and
(5) during such 60-day period the Holders of at least a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
However, such limitations do not apply to a suit instituted by a
Holder of any Note for enforcement of payment of the principal of, and premium,
if any, or interest on, such Note on or after the respective due date expressed
in such Note.
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SECTION 6.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, manager, trustee, officer, employee, member, partner or
stockholder of the Company or any Subsidiary Guarantor, shall have any liability
for any obligations of the Company or any Subsidiary Guarantor under the Notes,
or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. This waiver may not be effective to
waive liabilities under the U.S. federal securities laws.
SECTION 6.08. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of the principal of or premium, if any,
or interest, if any, on such Note or to bring suit for the enforcement of any
such payment, on or after the due date expressed in the Notes shall not be
impaired or affected without the consent of the Holder.
SECTION 6.09. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any Guarantor (or any other obligor on the Notes) for the whole
amount of unpaid principal and accrued interest remaining unpaid.
SECTION 6.10. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company or any Subsidiary Guarantor (or any
other obligor upon the Notes), its creditors or its property and, unless
prohibited by law, shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same after deduction of its charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.
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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 or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceedings. All rights of action and
claims under this Indenture or the Notes may be prosecuted and enforced by the
Trustee without the possession of any of the Notes thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of which such judgment has
been recovered.
SECTION 6.11. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Additional Interest,
if any) as to each, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Subsidiary Guarantor, to such Subsidiary Guarantor.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.11.
SECTION 6.12. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.08 or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer
of the Trustee has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture and use the same degree
of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such Person's own affairs.
The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only such duties as are specifically
set forth in this Indenture and no others.
(2) In the absence of bad faith or willful misconduct 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, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform on their face to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein). Whenever in the
administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate, subject to the
requirement in the preceding sentence, if applicable.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of Section 7.01(b).
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(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction of the
Holders of a majority in aggregate principal amount of the Notes received
by it pursuant to the terms hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights, powers or duties if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, Sections 7.01(a),
(b), (c) and (e) shall govern every provision of this Indenture that in any way
relates to the Trustee.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(1) The Trustee may conclusively rely on any document (whether in
its original or facsimile form) reasonably 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.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05. The Trustee shall be protected
and shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
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(3) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
by it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel with respect to legal matters relating
to the Notes or this Indenture shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(6) 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.
(7) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books records, and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(8) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(10) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such
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time to take specified actions pursuant to this Indenture, which Officers'
Certificate may be signed by any person authorized to sign an Officers'
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not suspended.
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 make loans to, accept deposits from, perform
services for or otherwise deal with the either of the Company or any Guarantor,
or any Affiliates thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however, shall
be subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes or any Guarantee,
it shall not be accountable for the Company's or any Guarantor's use of the
proceeds from the sale of Notes or any money paid to the Company or any
Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, Guarantee or this Indenture other
than its certificate of authentication, except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the
Notes and perform its obligations hereunder and that the statements made by it
in any Statement of Eligibility and Qualification on Form T-1 to be supplied to
the Company will be true and accurate subject to the qualifications set forth
therein.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder a notice of the Default within 90
days after it occurs in the manner and to the extent provided in the TIA and
otherwise as provided in this Indenture. Except in the case of a Default in
payment of the principal of or interest on any Note (including payments pursuant
to a redemption or repurchase of the Notes pursuant to the provisions of this
Indenture), 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 Holders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after June 15 of
any year, commencing 2004 the Trustee shall mail to each Holder a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c) and TIA Section 313(d).
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Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all Holders of Notes, as the names and addresses of such
Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose.
A copy of each report at the time of its mailing to Holders shall be
filed with the Commission and each stock exchange on which the Notes are listed.
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange or delisted therefrom.
SECTION 7.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee and Agents
from time to time such compensation for their services hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as shall be agreed upon in
writing. The Company and the Guarantors shall reimburse the Trustee and Agents
upon request for all reasonable disbursements, expenses and advances incurred or
made by them in connection with the Trustee's duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the
Trustee's agents and external counsel, except any expense disbursement or
advance as may be attributable to its willful misconduct, negligence or bad
faith.
The Company and the Guarantors, jointly and severally, shall fully
indemnify each of the Trustee and any predecessor Trustee for, and hold each of
them harmless against, any and all loss, damage, claim, liability or expense,
including without limitation taxes (other than taxes based on the income of the
Trustee or such Agent) and reasonable attorneys' fees and expenses incurred by
each of them in connection with the acceptance or performance of its duties
under this Indenture including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee or Agent shall notify the Company and
the Guarantors in writing promptly of any claim of which a Responsible Officer
of the Trustee has actual knowledge asserted against the Trustee or Agent for
which it may seek indemnity; provided that the failure by the Trustee or Agent
to so notify the Company and the Guarantors shall not relieve the Company and
Guarantors of their obligations hereunder except to the extent the Company and
the Guarantors are actually prejudiced thereby. In the event that a conflict of
interest exists, the Trustee may have separate counsel, which counsel must be
reasonably acceptable to the Company and the Company shall pay the reasonable
fees and expenses of such counsel.
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Notwithstanding the foregoing, the Company and the Guarantors need
not reimburse the Trustee for any expense or indemnify it against any loss or
liability to have been incurred by the Trustee through its own willful
misconduct, negligence or bad faith.
To secure the payment obligations of the Company and the Guarantors
in this Section 7.07, the Trustee shall have a lien prior to the Notes on all
money or property held or collected by the Trustee except for Escrowed Property
and such money or property held in trust to pay principal of and interest on
particular Notes.
The obligations of the Company and the Guarantors under this Section
7.07 to compensate and indemnify the Trustee, Agents and each predecessor
Trustee and to pay or reimburse the Trustee, Agents and each predecessor Trustee
for expenses, disbursements and advances shall be joint and several liabilities
of the Company and each of the Guarantors and shall survive the resignation or
removal of the Trustee and the satisfaction, discharge or other termination of
this Indenture, including any termination or rejection hereof under any
Bankruptcy Law.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to this Article Seven.
SECTION 7.08. Replacement of Trustee.
The Trustee shall comply with Section 313(b) of the TIA, to the
extent applicable.
The Trustee may resign by so notifying the Company and the
Guarantors in writing no later than 15 Business Days prior to the date of the
proposed resignation. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld. The
Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 or Section 310 of
the TIA;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief entered with respect to the Trustee under Bankruptcy Law;
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(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, the
Guarantors or the Holders of a majority in principal amount of the outstanding
Notes may petition at the expense of the Company any court of competent
jurisdiction, in the case of the Trustee, for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Guarantors.
Immediately following such delivery, the retiring Trustee shall, subject to its
rights under Section 7.07, transfer all property held by it as Trustee to the
successor Trustee, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10, the successor corporation without any
further act shall be the successor Trustee; provided such entity shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $50 million as set forth in the most recent applicable published
annual report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1).
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SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311 (b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
SECTION 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment
of principal of, or premium, if any, or interest on, the Notes (whether
such sums have been paid to it by the Company or by any obligor on the
Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. Without Consent of Holders.
The Company and the Trustee may modify and amend this Indenture or
any Security Document without the consent of any Holder (including entering into
the Security Documents upon the date of Release), for any of the following
purposes:
(i) to cure any ambiguity, omission, defect or inconsistency in this
Indenture or any Security Document;
(ii) to comply with Sections 5.01 and 5.02;
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(iii) to provide for uncertificated Notes, in addition to or in
place of certificated Notes;
(iv) to add additional Guarantees with respect to the Notes;
(v) to secure the Notes under this Indenture;
(vi) to add to the covenants of the Company or the Guarantors for
the benefit of the Holders of the Notes or to surrender any right or power
conferred upon the Company or the Guarantors;
(vii) to make any change that does not adversely affect the rights
of any Holder of the Notes;
(viii) to comply with any requirement of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(ix) to provide for the issuance of Additional Notes in accordance
with this Indenture, including the issuance of Additional Notes as
restricted securities under the Securities Act and substantially identical
Additional Notes pursuant to an Exchange Offer registered with the
Commission; or
(x) to evidence and provide the acceptance of the appointment of a
successor Trustee under Section 7.09.
SECTION 8.02. With Consent of Holders.
(a) This Indenture may be amended with the consent of the registered
Holders of a majority in aggregate principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Notes) and any past default or compliance with any provisions
may also be waived (except a default in the payment of principal, premium or
interest and under Section 8.02(b) below) with the consent of the registered
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding.
(b) However, without the consent of each Holder of an outstanding
Note, no amendment may,
(1) reduce the amount of Notes whose holders must consent to an
amendment, supplement or waiver,
(2) reduce the rate of or change the time for payment of interest on
any Note,
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(3) reduce the principal of or change the Stated Maturity of any
Note,
(4) make any Note payable in money other than that stated in the
Note,
(5) impair the right of any Holder of the Notes to receive payment
of principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on
or with respect to such Holder's Notes or the Notes Guarantees,
(6) (A) release any Guarantor that is a Significant Subsidiary from
its obligations under the Guarantee or this Indenture other than pursuant
to the terms of this Indenture, or (B) release any security interest that
may have been granted in favor of the Holders of the Notes pursuant to
Section 4.11 other than pursuant to the terms of this Indenture,
(7) modify the provisions of Section 4.08 or the related definitions
at any time on or after the Company is obligated to make a Change of
Control Offer,
(8) prior to the Release, release or modify in any respect the Lien
of the Trustee on the Escrowed Property, or
(9) waive a default in the payment of principal of or premium, if
any, or interest, if any, on the Notes (except as set forth under Section
6.04).
(c) The consent of the Holders of the Notes shall not be necessary
to approve the particular form of any proposed amendment. It shall be sufficient
if such consent approves the substance of the proposed amendment.
(d) After an amendment that requires the consent of the Holders of
Notes becomes effective, the Company shall mail to each registered Holder of the
Notes at such holder's address appearing in the security register a notice
briefly describing such amendment. However, the failure to give such notice to
all Holders of the Notes, or any defect therein, shall not impair or affect the
validity of the amendment. However, the failure to give such notice to all
Holders of the Notes, or any defect therein, will not impair or affect the
validity of the amendment.
(e) Upon the written request of the Company accompanied by a board
resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Holders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this
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Indenture, in which case the Trustee may, but shall not be obligated to, enter
into such supplemental indenture.
Without the consent of the requisite lenders under the Credit
Agreement, no amendment may be made to the subordination provisions in Section
10.06 or the requirement set forth in the proviso of the second paragraph under
Section 4.16.
SECTION 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
(a) After an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note.
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
SECTION 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee (in accordance with the specific written direction of the Company)
shall request the Holder of the Note (in accordance with the specific written
direction of the Company) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
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SECTION 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Eight if the amendment, supplement or waiver
does not affect the rights, duties, liabilities or immunities of the Trustee. If
it does affect the rights, duties, liabilities or immunities of the Trustee, the
Trustee may, but need not, sign such amendment, supplement or waiver. In signing
or refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating, in
addition to the matters required by Section 12.04, that such amendment,
supplement or waiver is authorized or permitted by this Indenture and is a
legal, valid and binding obligation of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with its terms
(subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Liability on Notes; Defeasance.
(a) This Indenture shall be discharged and shall cease to be of
further effect as to all Notes, and related Guarantees, issued hereunder when:
(i) either (x) 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 (y)
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 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 Obligations, or a
combination of cash in U.S. dollars and non-callable Government
Obligations, in amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire indebtedness on
the Notes not delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest to the date of maturity or
redemption;
(ii) no Default or Event of Default has occurred and is continuing
on the date of the deposit;
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(iii) the Company and the Guarantors have paid or caused to be paid
all sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case may
be.
In addition, the Company shall deliver an Officers' Certificate and an Opinion
of Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied and at the cost and expense of the Company.
(b) Subject to Sections 9.01(c) and 9.02, the Company may at any
time after Release elect to terminate some or all of its obligations and the
obligations of the Guarantors under the outstanding Notes and this Indenture
(hereinafter, "Legal Defeasance") except for obligations under Sections 2.04,
2.07 and 2.08 and obligations under the TIA. At any time after Release the
Company may terminate its obligations (i) under Sections 4.08, through 4.18,
(ii) under Section 6.01(5), (6), (7) (with respect to Significant Subsidiaries),
(8) or (9) and (iii) under Section 5.01(b)(4) on a date the conditions set forth
in Section 9.02 are satisfied (hereinafter, "Covenant Defeasance") and
thereafter, any omission to comply with any covenant referred to in clause (ii)
above will not constitute a Default or an Event of Default with respect to the
Notes. The Company may exercise its Legal Defeasance option notwithstanding its
prior exercise of its Covenant Defeasance option.
(c) If the Company exercises its Legal Defeasance option, payment of
the Notes may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its Covenant Defeasance option, payment of the
Notes may not be accelerated because of an Event of Default as described in
Section 6.01(3) (insofar as such Event of Default applies to obligations under
Section 5.01(b)(4)), under Section 6.01(4) (insofar as such Event of Default
applies to obligations under Sections 4.08 through 4.18), under Sections
6.01(5), (6), (7) (in the case of Sections 6.01(6) and (7), with respect to
Significant Subsidiaries only) or under Section 6.01(8) or the failure of the
Company to comply with Section 5.01(b)(5). If the Company exercises its Legal
Defeasance option, each Guarantor, if any, shall be released from all its
obligations under its Guarantee, and the Trustee shall execute a release of such
Guarantee. If the Company exercises its Covenant Defeasance option, each
Guarantor, if any, shall be released from its obligations under its Guarantee to
the extent that the Company is released from its obligations under this
Indenture.
(d) Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
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(e) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.06, 2.07, 2.08, 7.07, 9.05, 9.06 and 9.08 shall
survive until such time as the Notes have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 9.05 and 9.06 shall survive.
SECTION 9.02. Conditions to Defeasance.
The Legal Defeasance option or the Covenant Defeasance option, in
Section 9.01 may be exercised only after Release if:
(a) the Company irrevocably deposits in trust with the Trustee money
or Government Obligations, or a combination thereof, for the payment of
principal of and interest on the Notes to maturity or redemption, as the case
may be;
(b) the Company delivers to the Trustee a certificate from an
internationally recognized firm of independent certified public accountants
expressing their opinion that the payments of principal, premium, if any, and
interest when due and without reinvestment on the deposited Government
Obligations plus any deposited money without investment will provide cash at
such times and in such amounts as will be sufficient to pay principal, premium,
if any, and interest when due on all the Notes to maturity or redemption, as the
case may be;
(c) 123 days pass after the deposit is made and during the 123-day
period no Default described in Section 6.01(7) occurs with respect to the
Company or any other Person making such deposit which is continuing at the end
of the period;
(d) no Default or Event of Default has occurred and is continuing on
the date of such deposit and after giving effect thereto;
(e) such deposit does not constitute a default under any other
material agreement or instrument binding on the Company;
(f) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is not
qualified as, a regulated investment company under the Investment Company Act of
1940;
(g) in the case of an election of Legal Defeasance under Section
9.01, the Company delivers to the Trustee an Opinion of Counsel stating that:
(1) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling; or
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(2) since the date of this Indenture there has been a
change in the applicable U.S. Federal income tax law,
to the effect, in either case, that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the Notes will not recognize income, gain or
loss for U.S. Federal income tax purposes as a result of such Legal Defeasance
election and will be subject to U.S. Federal income tax on the same amounts, in
the same manner and at the same time as would have been the case if such
election has not occurred;
(h) in the case of an election of Covenant Defeasance under Section
9.01, the Company delivers to the Trustee an Opinion of Counsel to the effect
that the Holders of the Notes will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such Covenant Defeasance and will be
subject to U.S. Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such election had not occurred;
and
(i) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to an election
under 9.01 have been complied with as required by this Indenture.
SECTION 9.03. Deposited Money and Government Obligations To Be Held in Trust;
Other Miscellaneous Provisions.
All money and Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.02(a) in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company and the Guarantors shall (on a joint and several basis)
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section
9.02(a) or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon a request of
the Company any money or Government Obligations held by it as provided in
Section 9.02(a) which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certifica-
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tion thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
SECTION 9.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
Government Obligations in accordance with Section 9.01 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 each Guarantor's obligations under this Indenture, the Notes and
the Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Nine until such time as the Trustee or Paying Agent is
permitted to apply all such money or Government Obligations in accordance with
Section 9.01; provided that if the Company or the Guarantors have made any
payment of principal of, premium, if any, or accrued interest on any Notes
because of the reinstatement of their obligations, the Company or the
Guarantors, as the case may be, shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or Government Obligations
held by the Trustee or Paying Agent.
SECTION 9.05. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.02(a), to the
Company upon a request of the Company (or, if such moneys had been deposited by
the Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.06. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then
held by the Company or the Guarantors in trust for the payment of the principal
of, or premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon a request of the Company, or if such moneys
are then held by the Company or the Guarantors in trust, such moneys shall be
released from such trust; and the Holder of such Note entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company and the Guarantors for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided that the Trustee or any such Paying Agent, before being required
to make any such repayment, may, at the expense of the Company and the
Guarantors, either mail to each Holder affected, at the address shown in the
register of the Notes maintained by the Registrar
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pursuant to Section 2.04, or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of New York,
New York, a notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such moneys then remaining will
be repaid to the Company. After payment to the Company or the Guarantors or the
release of any money held in trust by the Company or any Guarantors, as the case
may be, Holders entitled to the money must look only to the Company and the
Guarantors for payment as general creditors unless applicable abandoned property
law designates another Person.
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee.
Prior to the Release, the Notes will not be guaranteed. From and
after the Release and subject to the provisions of this Article Ten, the
Obligations of the Company pursuant to the Notes and this Indenture will be
fully and unconditionally, jointly and severally guaranteed (A) on an unsecured
senior basis, by each Parent (the "Parent Guarantees"), Xxxxx XX (the "Xxxxx XX
Guarantee"), Xxxxxxx (the "Xxxxxxx Guarantee" and together with the Xxxxx XX
Guarantee, the "Sister Guarantees") and each Guarantor organized under the laws
of any State in the United States or in Canada or any province or territory
thereof (the "NA Subsidiary Guarantees" and collectively with the Parent
Guarantees and the Sister Guarantees, the "Senior Guarantees") and (B) on an
unsecured senior basis, other than subordination of the obligations of such
Guarantor to all obligations of such Guarantor under, or with respect to, Senior
Credit Facility Debt, by each Subsidiary Guarantor that is a Subsidiary
Guarantor organized outside the United States or Canada (the "Subordinated
Subsidiary Guarantees" and, together with the Senior Guarantees, the
"Guarantees"), upon execution of a Release Date Supplemental Indenture guarantee
to each Holder (i) the due and punctual payment of the principal of and interest
on each Note, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest on the Notes, to the extent lawful, and
the due and punctual payment of all other obligations and due and punctual
performance of all obligations of the Company to the Holders or the Trustee all
in accordance with the terms of such Note, this Indenture and the Registration
Rights Agreement, and (ii) in the 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, at stated maturity, by acceleration or otherwise. From and
after the Release, each Guarantor, by execution of the Release Date Supplemental
Indenture, agrees that its obliga-
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tions hereunder shall be absolute and unconditional, irrespective of, and shall
be unaffected by, any invalidity, irregularity or unenforceability of any such
Note or this Indenture, any failure to enforce the provisions of any such Note,
this Indenture or the Registration Rights Agreement, any waiver, modification or
indulgence granted to the Company with respect thereto by the Holder of such
Note, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or such Guarantor.
Each Guarantor hereby waives diligence, presentment, demand for
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any such Note or the Debt evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged as to any such Note except by payment in full of the principal
thereof and interest thereon. Each Guarantor hereby agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such obligations as provided in Article Six, such obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.
The Guarantee of any Guarantor may be released pursuant to Section
4.16 or Section 10.03.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of any Holder under the Guarantees.
SECTION 10.02. Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 10.01, each
Guarantor hereby agrees, on the date of the Release, that a notation of such
Guarantee, substantially in the form included in Exhibit F hereto, shall be
endorsed on each Note authenticated and delivered by the Trustee on the date of
the Release and such Guarantee shall be executed by either manual or facsimile
signature of an Officer or an Officer of a general partner, as the case may be,
of each Guarantor. The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 10.01 shall be in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
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If an Officer of a Guarantor whose signature is on this Indenture or
a Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 10.03. Release of Guarantors.
The Guarantee of any Guarantor will be automatically and
unconditionally released and discharged upon any of the following:
(A) in connection with the sale of (i) that number of shares of
Capital Stock of such Subsidiary Guarantor such that
Subsidiary Guarantor is no longer a Subsidiary of the Company
or another Restricted Subsidiary or (ii) all or substantially
all of the assets of such Subsidiary Guarantor to a Person
that is not the Company, Parent or another Restricted
Subsidiary of the Company; provided that such sale complies
with Section 4.12; or
(B) the designation of such Guarantor as an Unrestricted
Subsidiary in accordance with the provisions of this
Indenture;
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
In addition, in the event a Subsidiary becomes a Subsidiary
Guarantor solely because it guarantees other Debt, then upon the full and
unconditional release of the guarantee of such other Debt (provided that the
Trustee is given 90 days' written notice of such other release) such Subsidiary
Guarantee of such Subsidiary Guarantor shall also be released.
The Trustee shall execute any documents reasonably requested by
either the Company or a Guarantor in order to evidence the release of such
Guarantor from its obligations under its Guarantee endorsed on the Notes and
under this Article Ten.
SECTION 10.04. Waiver of Subrogation.
Until all of the obligations under the Notes and the Guarantees are
satisfied in full, each Guarantor hereby irrevocably waives any claim or other
rights which it may now or
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hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of such Guarantor's obligations under its Guarantee
and this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or Note on account of such claim or other rights. If
any amount shall be paid to any Guarantor in violation of the preceding sentence
and the Notes shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders of the Notes, and shall forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 10.04 is knowingly made in contemplation of
such benefits.
SECTION 10.05. Notice to Trustee.
The Company or any Guarantor shall give prompt written notice to the
Trustee of any fact known to the Company or any such Guarantor which would
prohibit the making of any payment to or by the Trustee at its Corporate Trust
Office in respect of the Guarantees. Notwithstanding the provisions of this
Article Ten or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Guarantees, unless
and until the Trustee shall have received written notice thereof from the
Company no later than one Business Day prior to such payment; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
this Section 10.05, and subject to the provisions of Sections 7.01 and 7.02,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice referred to in
this Section 10.05 at least one Business Day prior to the date upon which by the
terms hereof any such payment may become payable for any purpose under this
Indenture (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Note), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it less than one Business Day prior to such date.
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SECTION 10.06. Subordination of Subordinated Subsidiary Guarantees
(a) The obligations of a Subsidiary Guarantor with respect to its
Subordinated Subsidiary Guarantee will be subordinate in right of payment to the
prior payment in full in cash or cash equivalents of all obligations of such
Subsidiary Guarantor under or with respect to Senior Credit Facility Debt. The
terms of the subordination provisions provided by this Section 10.06 apply to
any Subsidiary Guarantor's obligations under the Subordinated Subsidiary
Guarantee of such Subsidiary Guarantor. Notwithstanding anything contained
herein to the contrary, neither the Trustee nor the Holders of the Notes may
receive or accept payments under a Subordinated Subsidiary Guarantee at a time
when they are not entitled to receive payment under the Notes.
(b) Only obligations under or with respect to Senior Credit Facility Debt
will rank senior in right of payment to the relevant Subordinated Subsidiary
Guarantee in accordance with the provisions of this Indenture. The Subordinated
Subsidiary Guarantees will in all respects rank senior in right of payment to
all other subordinated Debt of the Company, either Parent Guarantor and the
Subsidiary Guarantors.
(c) A Subsidiary Guarantor will not be permitted to pay on a Subordinated
Subsidiary Guarantee (collectively, "pay the Subordinated Subsidiary Guarantee")
if:
(1) a payment default on obligations under or with respect to Senior
Credit Facility Debt (including upon any acceleration of the maturity
thereof) occurs and is continuing; or
(2) any other default on obligations under or with respect to Senior
Credit Facility Debt occurs that permits holders of obligations under or
with respect to Senior Credit Facility Debt to accelerate the maturity
thereof and the Trustee receives a notice of such default (a "Payment
Blockage Notice") from the Representative of any Designated Senior Debt.
Payments on a Subordinated Subsidiary Guarantee may and shall be resumed:
(1) in the case of a payment default upon the date on which such
default is cured or waived or will have ceased to exist; and
(2) in the case of a nonpayment default upon the earlier of (x) the
date on which such nonpayment default is cured or waived or will have
ceased to exist (so long as no other default as in clause (c)(2) above
exists) and (y) 180 days after the date on which the applicable Payment
Blockage Notice is received.
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(d) No new Payment Blockage Notice may be delivered unless and until 360
days have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice.
(e) No known Default (other than a payment default) that existed upon the
commencement of a Payment Blockage Notice (whether or not such Event of Default
is on the same obligations under or with respect to Senior Credit Facility Debt)
shall be made the basis for the commencement of any other Payment Blockage
Notice, unless such default has been cured or waived or will have ceased to
exist for a period of not less than 90 consecutive days subsequent to the
commencement of such initial Payment Blockage Notice (it being acknowledged that
any subsequent action, or any breach of any financial covenants for a period
commencing after the date of such Payment Blockage Notice that, in either case,
would give rise to an Event of Default pursuant to any provisions under which an
Event of Default previously existed or was continuing shall constitute a new
Event of Default for this purpose).
(f) Upon any payment or distribution of the assets of any Subsidiary
Guarantor that has given a Subordinated Subsidiary Guarantee or its property
upon a total or partial liquidation or dissolution or reorganization of or
similar proceeding relating to such Subsidiary Guarantor or its Property:
(1) the holders of obligations under or with respect to Senior
Credit Facility Debt will be entitled to receive payment in full in cash
or cash equivalents of all such obligations under or with respect to
Senior Credit Facility Debt (including interest accruing after the
commencement of any bankruptcy or other like proceeding at the rate
specified in the applicable obligations under or with respect to Senior
Credit Facility Debt, whether or not such interest is an allowed claim in
any such proceeding) before the holders of the Notes are entitled to
receive any payment;
(2) until the obligations under or with respect to Senior Credit
Facility Debt are paid in full, in cash or cash equivalents, any payment
or distribution to which Holders of the Notes would be entitled but for
the subordination provisions of this Indenture will be made to holders of
such obligations under or with respect to Senior Credit Facility Debt as
their interests may appear; and
(3) if a distribution is made to Holders of the Notes that, due to
the subordination provisions, should not have been made to them, such
holders of the Notes are required to hold it in trust for the holders of
obligations under or with respect to Senior Credit Facility Debt and pay
it over to them as their interests may appear.
(g) Unsecured Debt is not deemed to be subordinate or junior to secured
Debt merely because it is unsecured or receives priority in respect of asset
sales, cash flows or other prepayments and Debt which has different security or
different priorities in the same security will not be deemed subordinate or
junior to secured Debt no matter what the differences are.
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(h) If payment or distribution of the Notes is accelerated because of an
Event of Default, the Company or the Trustee shall promptly notify the holders
of obligations under, or with respect to, Senior Credit Facility Debt or the
Representative of such holders of the acceleration.
(i) No provision contained in this Indenture or the Notes will affect the
Company's obligation, which is absolute and unconditional, to pay the Notes when
due. The subordination provisions of this Indenture and the Notes will not
prevent the occurrence of any Default or Event of Default under the indenture or
limit the rights of the Trustee or any holder to pursue any other rights or
remedies with respect to the Notes.
(j) By reason of the subordination provisions contained in this Indenture,
in the event of a liquidation or insolvency proceeding, creditors of the
Company, a Parent or a Subsidiary Guarantor who are holders of obligations under
or with respect to Senior Credit Facility Debt may recover more, ratably, than
the holders of the Notes, and the creditors of the Company, a Parent or a
Subsidiary Guarantor who are not Holders of obligations under or with respect to
Senior Credit Facility Debt may recover less, ratably, than Holders of
obligations under or with respect to Senior Credit Facility Debt.
(k) The terms of the subordination provisions described above will not
apply to payments from money or of Government Obligations, or a combination
thereof, held in trust by the Trustee for the payment of principal of and
interest on the Notes pursuant to Section 9.02.
ARTICLE ELEVEN
SECURITY DOCUMENTS
SECTION 11.01. Security Documents.
Prior to the Release, the due and punctual payment of the principal
of and interest on the Notes when and as the same shall be due and payable,
whether on an Interest Payment Date, at maturity, by acceleration, repurchase,
redemption, special redemption or otherwise, and interest on the overdue
principal of and interest on the Notes and performance of all other obligations
of the Company and the Guarantors to the Holders or the Trustee under this
Indenture and the Notes, according to the terms hereunder or thereunder, shall
be secured as provided in the Security Documents. Each Holder, by its acceptance
of the Notes, consents and agrees to the terms of the Security Documents
(including, without limitation, the provisions providing for foreclosure and
release of Collateral) as the same may be in effect or may be amended from time
to time in accordance with their terms. The Company shall deliver to the Trustee
copies of all documents delivered to the Securities Intermediary pursuant to the
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Security Documents, and shall do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Security Documents, to assure and confirm to the Trustee the security interest
in the Collateral contemplated hereby, by the Security Documents or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes secured thereby,
according to the intent and purposes herein and therein expressed. The Company
shall take any and all actions reasonably required to cause the Security
Documents to create and maintain, as security for the obligations of the Company
hereunder, a valid and enforceable perfected lien on and security interest in
all the Collateral, in favor of the Securities Intermediary for the benefit of
the Holders and other Persons for whose benefit the Securities Intermediary or
Trustee, as applicable, acts pursuant to the Security Documents.
SECTION 11.02. Recording and Opinions.
The Company shall take or cause to be taken all action required to
perfect, maintain, preserve and protect the Lien on and security interest in the
Collateral granted by the Security Documents. For the avoidance of doubt, no
Lien (other than that of the Trustee on behalf of the Holders) shall be
permitted to exist on the Collateral. The Company shall from time to time
promptly pay all financing, continuation statement and mortgage recording,
registration and/or filing fees, charges and taxes relating to this Indenture
and the Security Documents, any amendments thereto and any other instruments of
further assurance required hereunder or pursuant to the Security Documents. The
Trustee shall have no obligation to, nor shall it be responsible for any failure
to, so register, file or record.
SECTION 11.03. Release of Collateral.
(a) Collateral may (and, as applicable, shall) be released or
substituted only in accordance with the terms of the Security Documents.
(b) The release of any Collateral from the terms of this Indenture
and the Security Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of the Security Documents.
SECTION 11.04. Certificates of the Company.
To the extent applicable, the Company shall comply with TIA Section
313(b), relating to reports, and TIA Section 314(d), relating to the release of
property or securities from the lien and security interest of the Security
Documents and relating to the substitution therefor of any property or
securities to be subjected to the lien and security interest of the Security
Documents. Any certificate or opinion required by TIA Section 314(d) may be made
by an Officer of the Company except in cases where TIA Section 314(d) requires
that such certificate or opinion be
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made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Collateral Agent in the
exercise of reasonable care.
SECTION 11.05. Certificates of the Trustee.
In the event that the Company wishes to release Collateral in
accordance with the Security Documents and has delivered the certificates and
documents required by the Security Documents and Sections 11.03 and 11.04
hereof, the Trustee shall determine whether it has received all documentation
required by TIA Section 314(d) in connection with such release and, based on the
Opinion of Counsel delivered pursuant to Section 12.04(2), shall deliver a
certificate to the Collateral Agent setting forth such determination. The
Trustee, however, shall have no duty to confirm the legality or validity of such
documents, its sole duty being to certify that it has received such
documentation which on their face conform to Section 314(d) of the TIA.
SECTION 11.06. Authorization of Actions To Be Taken by the Trustee Under the
Security Documents.
Subject to the provisions of Sections 7.01 and 7.02 hereof, the
Trustee shall without the consent of the Holders of Notes, direct, on behalf of
the Holders of Notes, the Securities Intermediary to take all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the
Security Documents and (b) collect and receive any and all amounts payable in
respect of the obligations of the Company hereunder. The Trustee shall have
power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or to the
Trustee).
SECTION 11.07. Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of
the Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Security Documents.
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SECTION 11.08. Termination of Security Interest.
Upon the consummation of (x) the Acquisition and Release or (y) the
Special Mandatory Redemption, the Trustee shall deliver a certificate to the
Securities Intermediary stating that such obligations have been paid in full.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control. If any provision of this Indenture
modifies any TIA provision that may be so modified, such TIA provision shall be
deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA provision
shall be excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 12.02. Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and when received if delivered in
person, when receipt is acknowledged if sent by facsimile, on the next Business
Day if timely delivered by a nationally recognized courier service that
guarantees overnight delivery or two Business Days after deposit if mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company:
Xxxxx North America Finance Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
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With a copy to:
Xxxxx Corporation Limited
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
If to the Trustee, Registrar or Paying Agent:
Mailing Address:
Bank One, N.A.
1 Bank Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn.: Corporate Trust Administration
Fax: (000) 000-0000
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company, the Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such
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method of notification as shall be made with the approval of the Trustee shall
constitute a sufficient mailing of such notice.
SECTION 12.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture (except for the issuance of
Notes on the Issue Date), if so requested by the Trustee, the Company or such
Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include statements to a
similar effect as those set forth in Section 12.05 below) stating that, in
the opinion of such counsel, all such conditions precedent have been
complied with (to the extent such conditions precedent involve legal
conclusions).
SECTION 12.05. Statements Required in Certificate and Opinion.
Each certificate (other than certificates pursuant to Section 4.06)
with respect to compliance by or on behalf of the Company or any Guarantor with
a condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
SECTION 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of
Holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or other day on which (i)
commercial banks in the City of New York are authorized or required by law to
close or (ii) the New York Stock Exchange is not open for trading. 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 for the intervening period.
SECTION 12.08. Governing Law.
This Indenture, the Notes and the Guarantees shall be governed by
and construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company, Xxxxx or any Subsidiary of Xxxxx. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 12.10. Successors.
All agreements of the Company and the Guarantors in this Indenture
and the Notes shall bind their respective successors. All agreements of the
Trustee, any additional trustee and any Paying Agents in this Indenture shall
bind its successor.
SECTION 12.11. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
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SECTION 12.12. Consent To Jurisdiction And Service Of Process.
(a) Each Guarantor that is organized outside of the United States
irrevocably consents to the non-exclusive jurisdiction of the courts of the
State of New York and the courts of the United States of America located in the
Borough of Manhattan, City and State of New York over any suit, action or
proceeding with respect to this Indenture, the transactions contemplated hereby,
the Notes or the Guarantees and for actions brought under federal or state
securities laws. The Company waives any objection that it may have to the venue
of any suit, action or proceeding with respect to this Indenture, the
transactions contemplated hereby, the Notes or the Guarantees or federal or
state securities laws in the courts of the State of New York or the courts of
the United States of America, in each case, located in the Borough of Manhattan,
City and State of New York, or that such suit, action or proceeding brought in
the courts of the State of New York or the United States of America, in each
case, located in the Borough of Manhattan, City and State of New York was
brought in an inconvenient court and agrees not to plead or claim the same.
(b) Each Guarantor that is organized outside of the United States
irrevocably appoints Xxxxx XX, as its authorized agent in the State of New York
upon which process may be served in any such suit or proceedings, and agrees
that service of process upon such agent, and written notice of said service to
Xxxxx XX, by the person serving the same to the address stipulated pursuant to
Section 12.02, shall be deemed in every respect effective service of process
upon the Company in any such proceeding. Each Guarantor that is organized
outside of the United States further agrees to take any and all action as may be
necessary to maintain such designation and appointment of such agent in full
force and effect for a period of 10 years from the date of this Indenture.
SECTION 12.13. Conversion of Currency.
The Company covenants and agrees that the following provisions shall
apply to conversion of currency in the case of the Notes and this Indenture:
(a) (i) If, for the purpose of obtaining judgment in, or enforcing
the judgment of, any court in any country, it becomes necessary to convert into
a currency (the "judgment currency") an amount due in any other currency (the
"Base Currency"), then the conversion shall be made at the rate of exchange
prevailing on the Business Day before the day on which the judgment is given or
the order of enforcement is made, as the case may be (unless a court shall
otherwise determine).
(ii) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given or an order of
enforcement is made, as the case may be (or such other date as a court shall
determine), and the date of receipt of the amount due, the Company will pay such
additional (or, as the case may be, such
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lesser) amount, if any, as may be necessary so that the amount paid in the
judgment currency when converted at the rate of exchange prevailing on the date
of receipt will produce the amount in the Base Currency originally due.
(b) In the event of the winding-up of the Company at any time while
any amount or damages owing under the Notes and this Indenture, or any judgment
or order rendered in respect thereof, shall remain outstanding, the Company
shall indemnify and hold the Holders and the Trustee harmless against any
deficiency arising or resulting from any variation in rates of exchange between
(1) the date as of which the equivalent of the amount in U.S. Dollars or
Canadian Dollars, as the case may be, due or contingently due under the Notes
and this Indenture (other than under this Subsection (b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs of
claim in such winding-up. For the purpose of this Subsection (b), the final date
for the filing of proofs of claim in the winding-up of the Company shall be the
date fixed by the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date as at which
liabilities of the Company may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b) of this
Section 12.13 shall constitute obligations of the Company separate and
independent from its other respective obligations under the Notes and this
Indenture, shall give rise to separate and independent causes of action against
the Company, shall apply irrespective of any waiver or extension granted by any
Holder or the Trustee or any of them from time to time and shall continue in
full force and effect notwithstanding any judgment or order or the filing of any
proof of claim in the winding-up of the Company for a liquidated sum in respect
of amounts due hereunder (other than under Subsection (b) above) or under any
such judgment or order. Any such deficiency as aforesaid shall be deemed to
constitute a loss suffered by the Holders or the Trustee, as the case may be,
and no proof or evidence of any actual loss shall be required by the Company or
the liquidator or otherwise any of them. In the case of Subsection (b) above,
the amount of such deficiency shall not be deemed to be reduced by any variation
in rates of exchange occurring between the said final date and the date of any
liquidating distribution.
(d) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by [INSERT NAME OF XXXXX'X PRINCIPAL COMMERCIAL BANK] at its central
foreign exchange desk at its head office in NEW YORK at 12:00 noon NEW YORK time
for purchases of the Base Currency with the judgment currency other than the
Base Currency referred to in Subsections (a) and (b) above and includes any
premiums and costs of exchange payable.
(e) The Trustee shall have no duty or liability with respect to
monitoring or enforcing this Section 12.13.
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SECTION 12.14. Currency Equivalent.
Except as provided in Section 12.13, for purposes of the
construction of the terms of this Indenture or of the Notes, in the event that
any amount is stated herein in the currency of one nation (the "First
Currency"), as of any date such amount shall also be deemed to represent the
amount in the currency of any other relevant nation which is required to
purchase such amount in the First Currency at the rate of exchange quoted by
[INSERT NAME OF XXXXX'X PRINCIPAL COMMERCIAL BANK] at its central foreign
exchange desk at its head office in NEW YORK at 12:00 noon NEW YORK time on the
date of determination.
SECTION 12.15. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet 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 hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.16. Separability.
Each provision of this Indenture shall be considered separable and
if for any reason any provision which is not essential to the effectuation of
the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed all as of the date and year first written above.
XXXXX NORTH AMERICA FINANCE INC.
/s/ Xxxxxx X. Xxxxxxx
By:_______________________________
Name:
Title:
S-1
BANK ONE, N.A., as Trustee
By: _________________________________
Name:
Title:
S-2
